Rizzo v. Nelson

Appellate Division of the Supreme Court of New York

Rizzo v. Nelson

90 A.D.3d 934, 934 N.Y.2d 715

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 2011

StatusPublished

This text of 90 A.D.3d 934 (Rizzo v. Nelson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rizzo v. Nelson, 90 A.D.3d 934, 934 N.Y.2d 715 (N.Y. Ct. App. 2011).

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Opinion

[935]*935“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’s underlying motion to dismiss the indictment was determined in an order of the County Court, Rockland County, dated June 7, 2011. The petitioner’s remedy is to raise his claims on direct appeal from any judgment of conviction which may ultimately be rendered (see Matter of Randall v McGann, 76 AD3d 713 [2010]; see generally Matter of Billings v Erlbaum, 306 AD2d 526 [2003]).

Accordingly, the petitioner failed to demonstrate a clear legal right to the relief sought. Angiolillo, J.R, Dickerson, Lott and Miller, JJ., concur.

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[935]*935“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’s underlying motion to dismiss the indictment was determined in an order of the County Court, Rockland County, dated June 7, 2011. The petitioner’s remedy is to raise his claims on direct appeal from any judgment of conviction which may ultimately be rendered (see Matter of Randall v McGann, 76 AD3d 713 [2010]; see generally Matter of Billings v Erlbaum, 306 AD2d 526 [2003]).

Accordingly, the petitioner failed to demonstrate a clear legal right to the relief sought. Angiolillo, J.R, Dickerson, Lott and Miller, JJ., concur.

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90 A.D.3d 934, 934 N.Y.2d 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rizzo-v-nelson-nyappdiv-2011.

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