In re Scott v. Rios

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Jaime A. Rios, a Justice of the Supreme Court, Queens County, from imposing sentence on the petitioner in a criminal action entitled People v Scott, pending in the Supreme Court, Queens County, under Indictment No. 938/99, and application 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 as academic; and it is further,

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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought (see, Matter of Lumpkins v Griffin, 286 AD2d 334; Matter of Nanton v Grosso, 286 AD2d 335). Ritter, J. P., S. Miller, Friedmann and Crane, JJ., concur.