DeVincenzo v. Morgenthau

Appellate Division of the Supreme Court of New York

DeVincenzo v. Morgenthau

161 A.D.2d 476, 556 N.Y.S.2d 482, 1990 N.Y. App. Div. LEXIS 6045

Appellate Division of the Supreme Court of the State of New York·Decided May 22, 1990·Published·Cited by 2 cases

Opinion

Petition pursuant to CPLR article 78, in the nature of a writ of prohibition, seeking to enjoin respondent District Attorney of New York County from prosecuting petitioner under New York County indictment No. 8353/89, and to enjoin respondent Justice from, inter alia, enforcing an order issued March 9, 1990, denying petitioner’s motion to dismiss the indictment, is unanimously denied and the proceeding dismissed, without costs.

Petitioner has failed to establish that respondents are acting without the scope of their jurisdiction or authorized powers, and petitioner’s claims, including alleged violations of section 73 of the Civil Rights Law, can be reviewed and redressed through the ordinary channels of appeal. Accordingly, the extraordinary remedy of prohibition pursuant to CPLR article 78 does not lie. (Matter of Rush v Mordue, 68 NY2d 348, 352-354.) Concur—Sullivan, J. P., Ross, Kassal, Ellerin and Wallach, JJ.

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Petition pursuant to CPLR article 78, in the nature of a writ of prohibition, seeking to enjoin respondent District Attorney of New York County from prosecuting petitioner under New York County indictment No. 8353/89, and to enjoin respondent Justice from, inter alia, enforcing an order issued March 9, 1990, denying petitioner’s motion to dismiss the indictment, is unanimously denied and the proceeding dismissed, without costs.

Petitioner has failed to establish that respondents are acting without the scope of their jurisdiction or authorized powers, and petitioner’s claims, including alleged violations of section 73 of the Civil Rights Law, can be reviewed and redressed through the ordinary channels of appeal. Accordingly, the extraordinary remedy of prohibition pursuant to CPLR article 78 does not lie. (Matter of Rush v Mordue, 68 NY2d 348, 352-354.) Concur—Sullivan, J. P., Ross, Kassal, Ellerin and Wallach, JJ.

DeVincenzo v. Morgenthau, 161 A.D.2d 476, 556 N.Y.S.2d 482, 1990 N.Y. App. Div. LEXIS 6045 (N.Y. Ct. App. 1990).

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Opinion

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