Matter of Reid v. Del Giudice

Matter of Reid v Del Giudice (2019 NY Slip Op 02882)

Matter of Reid v Del Giudice

2019 NY Slip Op 02882

Decided on April 17, 2019

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 April 17, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
LINDA CHRISTOPHER, JJ.
2018-13518 DECISION, ORDER & JUDGMENT

Letitia James, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent Vincent Del Giudice.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent Vincent Del Giudice, a Justice of the Supreme Court, Kings County, from enforcing an order of the same court dated July 24, 2018, which granted the People's motion to compel a buccal swab of the petitioner for the purpose of DNA analysis pursuant to CPL 240.40(2)(b)(v), and application by the petitioner 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; and it is further,

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.

BALKIN, J.P., ROMAN, MILLER and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court