Matter of Caparella v Berkowitz

Matter of Caparella v Berkowitz 2009 NY Slip Op 08007 [67 AD3d 676] November 4, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Ronald Caparella, Petitioner,
v
Meryl J. Berkowitz, as Justice of the Supreme Court of the State of New York, et al., Respondents.

—[*1] Addabbo and Greenberg, Forest Hills, N.Y. (Todd D. Greenberg of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Roberta L. Martin of counsel), for respondent Meryl J. Berkowitz.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Jamie Johnson of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Kathleen Rice, District Attorney of Nassau County, from continuing to prosecute the petitioner under Nassau County indictment No. 1144N-08 on charges of criminal sexual act in the third degree and sexual abuse in the third degree and to prohibit the respondent Meryl J. Berkowitz, a Justice of the Supreme Court, Nassau County, from presiding over the trial of those charges.

Adjudged that the petition is denied and the proceeding is dismissed on the merits, 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 wither 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 petitioner has failed to demonstrate a clear legal right to the relief sought. Prudenti, P.J., Miller, Chambers and Roman, JJ., concur.