Matter of Chunn v. Modica

121 A.D.3d 783, 992 N.Y.S.2d 901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 8, 2014
• Docket: 2014-07093
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from retrying the petitioner on the criminal charges contained in Queens County indictment No. 2376/12 on the ground that a retrial is barred by the doctrine of double jeopardy, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,

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 failed to demonstrate a clear legal right to the relief sought.

Dillon, J.P, Dickerson, Cohen and Duffy, JJ., concur.