Marino v. Appelman

Proceeding pursuant to CPLR article 78 to prohibit the respondents, a Justice of the Supreme Court and other Justices assigned to the Eleventh Judicial District, from presiding over petitioners’ trials pursuant to Queens County indictments Nos. 2826/89, 2827/89 and 2828/89 and motion by the respondent Attorney-General to dismiss the petition pursuant to CPLR 7804 (f).

Ordered that the motion is granted; and it is further,

Adjudged that the proceeding is dismissed, without costs or disbursements.

The extraordinary remedy of prohibition does not lie as a means of seeking collateral review of an error of law, no matter how egregious, in a pending criminal matter (see, Matter of Kramer v Rosenberger, 107 AD2d 748, 749). Inasmuch as the petitioner has failed to demonstrate a clear legal right to this remedy which transcends a question of substantive or procedural law and which could not otherwise be safeguarded through the alternative remedy of appeal (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Rush v Mordue, 68 NY2d 348; Matter of Molea v Marasco, 64 NY2d 718), the proceeding is dismissed. Mollen, P. J., Thompson, Brown and Harwood, JJ., concur.