Niccolich v. O'Dwyer

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit further prosecution of the petitioner under Queens County Indictment No. 4604/92, on the ground that further prosecution would violate the Double Jeopardy Clause of the United States and New York State Constitutions.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto, it is

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). Nor is it available if there exists "an adequate remedy, by way of appeal or otherwise” (Matter of Molea v Marasco, 64 NY2d 718, 720; see, Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993). Under the circumstances of this case, the petitioner has an adequate remedy by way of direct appeal from the judgment of conviction. Bracken, J. P., Sullivan, Miller and Hart, JJ., concur.