Bracken v. Weissman

151 A.D.2d 478, 542 N.Y.S.2d 269, 1989 N.Y. App. Div. LEXIS 7457

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1989
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to prohibit the respondents from proceeding with the prosecution of the petitioner with respect to Nassau County indictment No. 69198 on the ground that the Special District Attorney exceeded the scope of his authority.

Adjudged that the proceeding is dismissed, with costs to the Special District Attorney.

On September 8, 1988, a Grand Jury returned an indictment charging the petitioner with 25 separate crimes, including several counts of grand larceny in the third degree, grand larceny in the fourth degree, official misconduct, offering a false instrument for filing in the first degree, and petit larceny. On February 15, 1989, in response to the petitioner’s omnibus motion, the County Court, Nassau County (Weiss-man,. J.), dismissed the twenty-second through twenty-fifth counts as being outside the "particular case” which the Special District Attorney had been appointed to investigate and prosecute.

As a threshold matter, relief pursuant to CPLR article 78 in the nature of prohibition does not properly lie in the instant situation inasmuch as the petitioner has failed to demonstrate a clear legal right to this remedy which transcends a question of substantive or procedural law, and which could not otherwise be safeguarded through an alternative remedy such as appeal from any judgment of conviction (see, Matter of Rush v Mordue, 68 NY2d 348; LaRocca v Lane, 37 NY2d 575, cert denied 424 US 968; Matter State of New York v King, 36 NY2d 59). Sullivan, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.