Majority
p. 616In the Matter of Brian K. Bugge, Petitioner, v Anthony R. Corso et al., Respondents. [682 NYS2d 887]
—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to preclude the respondents from continuing a criminal prosecution against the petitioner under Suffolk County Indictment No. 1437-97.
Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.
“Because of its extraordinary nature, prohibition is available
p. 617
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). Prohibition is not available to obtain “premature appellate review of issues properly reviewable in the regular appellate process” (Matter of Rush v Mordue, supra, at 352 ). Because the petitioner’s claim may be properly reviewed on direct appeal from a judgment entered against him, the remedy of prohibition does not lie and the petition is dismissed (see, Matter of Maisonet v Merola, 69 NY2d 965 , 966). Miller, J. P., Ritter, Altman and McGinity, JJ., concur.
Cases cited
- Holtzman v. Goldman 71 NY2d 564 at 569 p. 617
- Rush v. Mordue 68 NY2d 348 at 352 p. 617
- Maisonet v. Merola 69 NY2d 965 at 966 p. 617