| Matter of Solheim v Weber |
| 2009 NY Slip Op 09476 [68 AD3d 1002] |
| December 15, 2009 |
| Appellate Division, Second Department |
| In the Matter of Thomas Solheim, Petitioner, v Gary J.Weber, as Judge of the Suffolk County Court, et al., Respondents. |
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Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit therespondents from enforcing an order of the respondent Gary J. Weber, a Judge of the CountyCourt, Suffolk County, dated July 7, 2009, which granted the motion of the respondent ThomasJ. Spota, District Attorney of Suffolk County, to compel the petitioner to provide a buccal swabsample for DNA analysis in connection with a homicide investigation.
Adjudged that the petition is denied, the proceeding is dismissed on the merits, without costsor disbursements, and the temporary stay contained in the order to show cause dated August 5,2009 is vacated forthwith.
"Because of its extraordinary nature, prohibition is available only where there is a clear legalright, and then only when a court—in cases where judicial authority ischallenged—acts or threatens to act either without jurisdiction or in excess of itsauthorized powers" (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; seeMatter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioner has failed todemonstrate a clear legal right to the relief sought (see Matter of Thompson v Griffin, 58AD3d 637 [2009]; Matter of Weissman v Lange, 4 AD3d 478 [2004]; see also Matterof Traynor v Rosato, 275 AD2d 326 [2000]). Rivera, J.P., Fisher, Belen and Austin, JJ.,concur.