Matter of Solheim v Weber

Matter of Solheim v Weber 2009 NY Slip Op 09476 [68 AD3d 1002] December 15, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Thomas Solheim, Petitioner,
v
Gary J. Weber, as Judge of the Suffolk County Court, et al., Respondents.

—[*1] Hartmann Doherty Rosa Berman & Bulbulia, LLC, New York, N.Y. (Mark A. Berman of counsel), for petitioner. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from enforcing an order of the respondent Gary J. Weber, a Judge of the County Court, Suffolk County, dated July 7, 2009, which granted the motion of the respondent Thomas J. Spota, District Attorney of Suffolk County, to compel the petitioner to provide a buccal swab sample for DNA analysis in connection with a homicide investigation.

Adjudged that the petition is denied, the proceeding is dismissed on the merits, without costs or disbursements, and the temporary stay contained in the order to show cause dated August 5, 2009 is vacated forthwith.

"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 petitioner has failed to demonstrate a clear legal right to the relief sought (see Matter of Thompson v Griffin, 58 AD3d 637 [2009]; Matter of Weissman v Lange, 4 AD3d 478 [2004]; see also Matter of Traynor v Rosato, 275 AD2d 326 [2000]). Rivera, J.P., Fisher, Belen and Austin, JJ., concur.