Matter of John Russell v William M. Erlbaum

Matter of Russell v Erlbaum 2004 NY Slip Op 05459 [8 AD3d 580] June 21, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

In the Matter of John Russell, Petitioner,
v
William M. Erlbaum, as Justice of the Supreme Court of the State of New York, et al., Respondents.

—[*1]Proceeding pursuant to CPLR article 78 in the nature of prohibition, in effect, to prohibit the respondent District Attorney of Queens County from further prosecution of indictment No. 2741/02, and application for poor person relief.

Upon the papers filed in support of the proceeding and the application, and the papers filed in opposition thereto, it is,

Ordered that the application is granted to the extent that the filing fee is waived; and it is further,

Ordered that the application is otherwise denied; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; see, Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The [*2]petitioner has failed to demonstrate a clear legal right to the relief sought. Ritter, J.P., Goldstein, Crane and Spolzino, JJ., concur.