Hynes v. Demarest

202 A.D.2d 669, 610 N.Y.S.2d 841

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 1994
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition to bar the respondents from enforcing an order of the respondent Carolyn Demarest, a Justice of the Supreme Court, dated January 4, 1994, which disqualified his office from conducting the prosecution of the respondent Lawson Walters and directed that a Special District Attorney be appointed.

Adjudged that the petition is granted, on the law, without costs or disbursements, the respondents are prohibited from enforcing the order disqualifying the office of the petitioner District Attorney, Kings County, from prosecuting the respondent Lawson Walters, and the temporary restraining order contained in the order to show cause dated January 21, 1994, is vacated.

We find, on the record before us, that the respondent Lawson Walters has failed to show the existence of any actual prejudice which would justify this intrusion by the judiciary upon the discretion of the District Attorney, Kings County, in the exercise of his prosecutional powers (see, Matter of Schumer v Holtzman, 60 NY2d 46, 55; Matter of Holtzman v Hellenbrand, 130 AD2d 749, 751). Therefore, the petition is granted. Mangano, P. J., Thompson, Sullivan, Lawrence and Ritter, JJ., concur.