Kavanagh v. Vogt

— Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506, subd [b], par 1) to prohibit implementation of an order of a Judge of the County Court of Ulster County. Although labeled an application in the nature of certiorari in the petition, this proceeding, in actuality, seeks a writ of prohibition restraining enforcement of an order of the Ulster County Judge which disqualified the Ulster County District Attorney’s office from prosecuting the defendants in nine separate cases. The basis for the disqualification was that these nine defendants were assisted by an Assistant Public Defender of Ulster County who thereafter served for five days as an Assistant District Attorney until asked to resign because of a possible conflict of interest. The record demonstrates that at no time did any of the matters he handled as an Assistant District Attorney touch on or relate in any way to the cases he handled as an Assistant Public Defender, nor did he discuss any of these cases with any member of the staff or provide them with any information during this five-day period. Upon these facts, the County Court felt constrained to disqualify the District Attorney’s office, apparently relying upon the decision of the Court of Appeals in People v Shinkle (51 NY2d 417). While we would not assign such a restrictive interpretation to the language contained in Shinkle, we are unable to say that respondent’s action went beyond his authorized powers. Recognizing that there is no right of direct appeal from the order of disqualification (see CPL 450.20), relief by way of article 78 is, nevertheless, unavailable where, as here, respondent’s actions were within his authorized powers (Matter of Wilcox v Dwyer, 73 AD2d 1016, 1017). The extraordinary remedy of prohibition does not lie except in narrowly defined situations when the court is clearly exceeding its authorized powers (see Matter ofJaffe v Scheinman, 47 NY2d 188; La Rocca v Lane, 37 NY2d 575). Petition dismissed, without costs. Mahoney, P. J., Kane, Main and Casey, JJ., concur.