Matter of Reid v Del Giudice, 2019 NY Slip Op 02882 [171 AD3d 1073]

April 17, 2019

Appellate Division, Second Department

[*1]

In the Matter of Kamer Reid, Petitioner,

v

Vincent Del Giudice, a Justice of the Supreme Court, Kings County, et al., Respondents.

Kamer Reid, New York, NY, appellant pro se.

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 [1988]; see Matter of Rush v Mordue , 68 NY2d 348, 352 [1986]).

The petitioner has failed to establish a clear legal right to the relief sought. Balkin, J.P., Roman, Miller and Christopher, JJ., concur..