| Matter of Brown v Kron |
| 2014 NY Slip Op 08014 |
| Decided on November 19, 2014 |
| Appellate Division, Second Department |
| 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. |
Decided on November 19, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.
2014-07504 DECISION, ORDER & JUDGMENT
v
Barry Kron, etc., respondent. Josh Brown, Malone, N.Y., petitioner pro se.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit Justice Barry Kron, an Acting Justice of the Supreme Court, Queens County, from hearing and determining the petitioner's motion to vacate a judgment of conviction rendered against him on August 18, 2005, in the Supreme Court, Queens County, in a criminal action entitled People v Brown , commenced in that court under Indictment No. 2349/04, 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 so much of the petition as seeks to prohibit the respondent from hearing and determining the petitioner's motion to vacate the judgment of conviction is denied as academic, and the petition is otherwise denied and the proceeding is dismissed, without costs or disbursements.
So much of the instant proceeding as seeks to prohibit the respondent from hearing and determining the petitioner's motion to vacate a judgment of conviction rendered against him on August 18, 2005, has been rendered academic in light of the order of the respondent dated September 9, 2014, deciding the petitioner's motion.
As to the remainder of the petition, "[b]ecause 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; see Matter of Rush v Mordue , 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought.
DILLON, J.P., CHAMBERS, COHEN and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court