Matter of Gonzalez v Spota, 2015 NY Slip Op 03839 [128 AD3d 697]

May 6, 2015

Appellate Division, Second Department

[*1]

In the Matter of Johnny Gonzalez, Petitioner,

v

Thomas J. Spota et al. Respondents.

Law Offices of Christopher J. Cassar, P.C., Huntington, N.Y., for petitioner.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Philip J. Branigan of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent Thomas J. Spota, the Suffolk County District Attorney, from prosecuting the petitioner under Suffolk County indictment No. I-2046A-13, and to prohibit the respondent Stephen Braslow, a Justice of the County Court, Suffolk County, from presiding over that criminal action.

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 Houston v D’Emic , 82 AD3d 1099 , 1099 [2011], quoting 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. Dillon, J.P., Leventhal, Austin and LaSalle, JJ., concur..