| Matter of Smith v Cohen |
| 2008 NY Slip Op 08133 [55 AD3d 841] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Marvin Smith, Petitioner, v Jeffrey Cohen, as Justice of the Westchester County Court, Respondent. |
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Andrew M. Cuomo, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for
respondent.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, Jeffrey Cohen, a Justice of the County Court, Westchester County, from proceeding with the trial in an action entitled People v Smith, pending in that court under indictment No. 08-00084.
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. Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.