IN RE: Paul Rizzo (2011)

DECISION, ORDER & JUDGMENT

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent William K. Nelson, a Judge of the County Court, Rockland County, from presiding over a trial in a criminal action entitled People v. Rizzo, pending in the County Court, Rockland County, under Indictment No. 11–00114, 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 N.Y.2d 564, 569;  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352).   The petitioner's underlying motion to dismiss the indictment was determined in an order of the County Court, Rockland County, dated June 7, 2011.   The petitioner's remedy is to raise his claims on direct appeal from any judgment of conviction which may ultimately be rendered (see Matter of Randall v. McGann, 76 AD3d 713;  see generally Billings v. Erlbaum, 306 A.D.2d 526).

Accordingly, the petitioner failed to demonstrate a clear legal right to the relief sought.

ANGIOLILLO, J.P., DICKERSON, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court