| Matter of Herrera v Hollie |
| 2007 NY Slip Op 03694 [39 AD3d 857] |
| April 24, 2007 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Steven Herrera, Petitioner, v Ronald Hollie et al., Respondents. |
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Richard A. Brown, District Attorney, Kew Gardens, N.Y. (William H. Branigan of counsel), respondent pro se.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, to prohibit the respondents from proceeding with the retrial of the petitioner, Steven Herrera, who is the defendant in a criminal action entitled People v Herrera, pending in the Supreme Court, Queens County, under indictment No. 2867/04.
Adjudged that the petition is denied and the proceeding is dismissed, 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 has failed to demonstrate a clear legal right to the relief sought. Crane, J.P., Florio, Fisher and Dickerson, JJ., concur.