Herrera v. Hollie

Proceeding pursuant to CPLR article 78 in the nature of prohibition, to prohibit the respondents from proceeding with the retrial of the petitioner, Steven Herrera, who is the defendant in a criminal action entitled People v Herrera, pending in the Supreme Court, Queens County, under indictment No. 2867/04.

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 [1988]; see, Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Crane, J.P., Florio, Fisher and Dickerson, JJ., concur.