Matter of Phillip Jean-Laurent v William Erlbaum

Matter of Jean-Laurent v Erlbaum 2004 NY Slip Op 09506 [13 AD3d 534] December 20, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

In the Matter of Phillip Jean-Laurent, Petitioner,
v
William 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, inter alia, to prohibit the respondent William Erlbaum, a Justice of the Supreme Court, Queens County, from proceeding with the trial of the charges contained in indictment No. 701/04, in a criminal action entitled People v Jean-Laurent, commenced in the Supreme Court, Queens County, which has been consolidated with indictment No. 2269/03, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and 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. Krausman, J.P., Goldstein, Luciano and Fisher, JJ., concur.