In the Matter of Brandon McFadden, Petitioner, v. Joseph A. Grosso et al., Respondents

In the Matter of Brandon McFadden, Petitioner, v Joseph A. Grosso et al., Respondents. [702 NYS2d 849] [MAJORITY] —Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alla, to enjoin further prosecution of a criminal proceeding entitled People v McFadden, pending in Supreme Court, Queens County, under Indictment No. 10875/99, and motion for leave to prosecute the proceeding as a poor person. Motion by the respondent Joseph A. Grosso to dismiss the proceeding. Ordered that the motion for leave to prosecute the proceeding as a poor person is granted; and it is further, Ordered that the motion of the respondent Joseph A. Grosso to dismiss the proceeding is granted; 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. Joy, J. P., Altman, Goldstein and Schmidt, JJ., concur.