Collesano v. Marshall

151 A.D.2d 1045

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1989
• Status: Published

Opinion

Petition unanimously dismissed without costs and motion for stay denied. Memorandum: In this CPLR article 78 proceeding originating in this court, petitioner seeks a writ of prohibition to bar his trial on an indictment charging him with three counts of grand larceny in the third degree (Penal Law § 155.30 [6]).

The Attorney-General is authorized to prosecute this indictment pursuant to Executive Law § 63 (3) (see, Matter of Mann Judd Landau v Hynes, 49 NY2d 128, 135). Consequently, issuance of a writ of prohibition in the circumstances of this case would be inappropriate. "[T]he extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court (if a court is involved) acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction” (Matter of Rush v Mordue, 68 NY2d 348, 352; see also, Matter of Holtzman v Goldman, 71 NY2d 564; Matter of James N v D’Amico, 139 AD2d 302, lv denied 73 NY2d 703). (Original art 78 proceeding.) Present — Denman, J. P., Boomer, Green, Law-ton and Davis, JJ. (Order entered May 25,1989.)