Pender v. Nelson

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit prosecution of the defendant under Rockland County Indictment No. 296/93 on the ground of double jeopardy.

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). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.