Matter of Horsley v. Gonzalez , 153 A.D.3d 829 ( 2017 )

Matter of Horsley v Gonzalez (2017 NY Slip Op 06274)

Matter of Horsley v Gonzalez

2017 NY Slip Op 06274

Decided on August 23, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 23, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
BETSY BARROS, JJ.

2017-00280 DECISION, ORDER, & JUDGMENT
(Ind. No. 4219/15)

[*1]In the Matter of Dwayne Horsley, petitioner,

v

Eric Gonzalez, Acting District Attorney of Kings County, et al., respondents.

Dwayne Horsley, Brooklyn, NY, petitioner pro se.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Robert Zweibel of counsel), respondent pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent William Miller.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from proceeding with an underlying criminal prosecution entitled People v Horsley , pending in the Supreme Court, Kings County, under Indictment No. 4219/15, and in the nature of mandamus to compel the respondents to dismiss the indictment, and application by the petitioner for poor person relief.

ORDERED that the application for poor person relief is granted to the extent that the

filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed on the merits,

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; see Matter of Rush v Mordue , 68 NY2d 348, 352). The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy . of Sullivan County v Scheinman , 53 NY2d 12, 16).

The petitioner failed to demonstrate a clear legal right to the relief sought.

HALL, J.P., ROMAN, COHEN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court