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In the Matter of Robert J. Simpson, as District Attorney of Tioga County v. Charles B. Swartwood, as Justice of the Supreme Court of the State of New York
Opinions in this case
Proceeding pursuant to CPLR article 78 (brought on in this court [CPLR 506, subd (b), par 1]) seeking, inter alia, to prohibit respondents from taking further action to enforce the order of Supreme Court, Tioga County, directing petitioner to prosecute the misdemeanor charge in People v Frank L. Dean by indictment in the County Court of Tioga County.
In his decision on respondent Dean’s motion for divestiture, the respondent Swartwood found that since respondent Dean is charged with a misdemeanor which could result in a term of imprisonment and, since the local criminal court is presided over by a lay Justice, the respondent Dean was, as a matter of right, entitled to a transfer of the charge against him to a superior court to be prosecuted by indictment.
The respondent Swartwood has the authority to require that a misdemeanor charge be prosecuted by indictment (CPL 170.25). Consequently, the instant petition must be dismissed since the extraordinary remedy of prohibition does not lie to review an error of law in a pending criminal action (Matter of State of New York v King, 36 NY2d 59, 62; Matter of State of New York v Harvey, 55 AD2d 716). Petition dismissed, without costs. Mahoney, P. J., Sweeney and Staley, Jr., JJ., concur.