Herrera v. Hollie ( 2007 )

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.