Everetts v. Dwyer ( 1982 )

Application, pursuant to CPLR article 78, for judgment in the nature of prohibition, denied, and petition dated December 29,1981 dismissed. The extraordinary remedy of prohibition is available only where petitioner has established a clear right to relief and where action taken or threatened is clearly without jurisdiction or in excess of jurisdiction (see, e.g., Matter of State of New York v King, 36 NY2d 59). It is further clear that prohibition does not lie to review the exercise of discretion in a criminal case (Matter of Mullen v Harris, 80 AD2d 981; Matter of Bloom v Clyne, 69 AD2d 956; see CPLR 7801). Since the matter sought to be reviewed here involves an exercise of discretion by respondent County Judge, this proceeding does not lie (CPL 210.20, subd 4; Matter of Haley v Darrigrand, 64 AD2d 862, mot for lv to app den 46 NY2d 705). Mahoney, P. J., Sweeney, Kane, Main and Levine, JJ., concur.