The opinion
Petition unanimously dismissed without costs. Memorandum: Petitioner seeks a writ of prohibition disqualifying respondent, a Supreme Court Justice, from sitting as Judge or as the trier of fact on petitioner’s posttrial motion, pursuant to CPL 440.10, to vacate the judgment entered against him in a criminal action. Petitioner seeks to disqualify respondent, who presided over petitioner’s criminal trial, because respondent "has previously exhibited a propen *980 sity for prejudice against him” and because petitioner intends to call respondent as a witness at any hearing held on his CPL article 440 motion.
"[T]he extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court (if a court is involved) acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction (Matter of Steingut v Gold, 42 NY2d 311, 315 ; Matter of Dondi v Jones, 40 NY2d 8, 13 ; La Rocca v Lane, 37 NY2d 575, 578-579 ; Matter of State of New York v King, 36 NY2d 59, 62 ; Matter of Proskin v County Ct., 30 NY2d 15, 18 ; Matter of Lee v County Ct., 27 NY2d 432, 436-437 )” (Matter of Rush v Mordue, 68 NY2d 348, 352-353 ). Under the circumstances of this case, the writ of prohibition does not lie.
Moreover, the petition alleges no basis for the disqualification of the Justice pursuant to Judiciary Law § 14 (see, Matter of Katz v Denzer, 70 AD2d 548, 549). Petitioner only asserts a claim of alleged actual bias of the Trial Justice. With respect to that claim, “the judge himself is the sole arbiter” (People v Patrick, 183 NY 52, 54 ; see also, People v Moreno, 70 NY2d 403, 405-406). "Even if actual bias or prejudice is shown, it would not be grounds for disqualification but would only be reviewable on appeal on a showing that it had unjustly affected the result” (Matter of Katz v Denzer, supra, at 549). (Original art 78 proceeding.) Present—Denman, J. P., Boomer, Pine, Davis and Lowery, JJ.