Matter of Peters v. Del Giudice , 156 A.D.3d 886 ( 2017 )

Matter of Peters v Del Giudice (2017 NY Slip Op 09134)

Matter of Peters v Del Giudice

2017 NY Slip Op 09134

Decided on December 27, 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 December 27, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
LINDA CHRISTOPHER, JJ.

2017-11814

[*1]In the Matter of Malik Peters, petitioner,

v

Vincent Del Giudice, etc., et al., respondents.

Lawrence P. LaBrew, New York, NY, for petitioner.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent Vincent Del Giudice.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel), respondent pro se.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents Vincent Del Giudice, a Justice of the Supreme Court, Kings County, and Eric Gonzalez, Acting District Attorney of Kings County, from proceeding with the trial of the petitioner in a criminal action entitled People v Peters , pending in that court under Indictment No. 8885/15.

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 petitioner has failed to establish a clear legal right to the relief sought.

HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court