Matter of Graham v. Firetog , 149 A.D.3d 735 ( 2017 )

Matter of Graham v Firetog (2017 NY Slip Op 02647)

Matter of Graham v Firetog

2017 NY Slip Op 02647

Decided on April 5, 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 April 5, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.

2017-00417

[*1]In the Matter of Daryl Graham, petitioner,

v

Neil Jon Firetog, etc., et al., respondents.

Andrea G. Hirsch, New York, NY, for petitioner.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Amy Appelbaum of counsel), respondent pro se.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from continuing the prosecution of the petitioner in a criminal action entitled People v Graham , pending in the Supreme Court, Kings County, under Indictment No. 9216/95, and in the nature of mandamus, in effect, to compel the respondent Neil Jon Firetog, a Justice of the Supreme Court, Kings County, to dismiss the indictment.

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 has failed to demonstrate a clear legal right to prohibition or mandamus (see Matter of Crain Communications v Hughes , 74 NY2d 626), and has failed to establish entitlement to any other relief requested.

BALKIN, J.P., AUSTIN, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court