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Caparella v. Berkowitz

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


November 4, 2009

IN THE MATTER OF RONALD CAPARELLA, PETITIONER,
v.
MERYL J. BERKOWITZ, ETC., ET AL., RESPONDENTS.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Kathleen Rice, District Attorney of Nassau County, from continuing to prosecute the petitioner under Nassau County Indictment No. 1144N-08 on charges of criminal sexual act in the third degree and sexual abuse in the third degree and to prohibit the respondent Meryl J. Berkowitz, a Justice of the Supreme Court, Nassau County, from presiding over the trial of those charges.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., HOWARD MILLER, CHERYL E. CHAMBERS and SHERI S. ROMAN, JJ.

DECISION & JUDGMENT

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 wither 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.

PRUDENTI, P.J., MILLER, CHAMBERS and ROMAN, JJ., concur.

20091104

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