Mullen v. Harris

Application pursuant to CPLR article 78, for judgment in the nature of prohibition, denied, and petition dated March 26, 1981 dismissed. The extraordinary remedy of prohibition is available only where petitioner has established a clear right to relief and where action taken or threatened is clearly without jurisdiction or in excess of jurisdiction (see, e.g., Matter of State of New York v King, 36 NY2d 59). It is further clear that prohibition does not lie to review the exercise of discretion in criminal cases (Matter of Bloom v Clyne, 69 AD2d 956; Matter of Bloeth v Marks, 20 AD2d 372, mot for lv to app den 15 NY2d 481) and is not available to review claimed errors of substantive or procedural law, even where constitutional issues are involved (La Rocca v Lane, 37 NY2d 575, 580, cert den 424 US 968; Matter of Bloom v Clyne, supra). In view of these principles and, further, since the actions complained of in support of the petition would be reviewable on an appeal from a judgment of conviction, this collateral proceeding does not lie. Mahoney, P. J., Sweeney, Kane, Casey and Weiss, JJ., concur.