Canales v. Goldberg

98 A.D.3d 974, 950 N.Y.S.2d 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 12, 2012
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent Joel M. Goldberg, a Justice of the Supreme Court, Kings County, from presiding over a trial on a charge of manslaughter in the second degree in a criminal action entitled People v Canales, pending in the Supreme Court, Kings County, under indictment No. 8406/07, and to prohibit the respondent Charles J. Hynes from prosecuting the petitioner for manslaughter in the second degree in that criminal action.

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 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, as no charge of manslaughter in the second degree is pending against him. Dickerson, J.P., Leventhal, Belen and Austin, JJ., concur.