Goetz v. Crane

Proceeding pursuant to CPLR article 78 to prohibit the prosecution of New York County indictment No. 1914/85, and to compel the dismissal of the said indictment, dismissed, without costs or disbursements. The petitioner in the instant proceeding stands charged in an indictment, handed up by a New York County Grand Jury, with four counts of an attempt to commit the crime of murder in the second degree, four counts of assault in the first degree, one count of criminal possession of a weapon in the second degree, 730 and one count of reckless endangerment in the first degree. In this article 78 proceeding, petitioner maintains that the respondent, Acting Justice of the Supreme Court, abused his discretion in granting respondent District Attorney’s application for resubmission of charges pursuant to CPL 190.75 (3). We conclude that the proceeding must be dismissed. The remedy of prohibition does not lie as a means of seeking collateral review of an alleged error of law in a pending criminal matter. (Matter of Gold v Gartenstein, 54 NY2d 627 [1981]; Matter of State of New York v King, 36 NY2d 59 [1975].) Article 78 jurisdiction also does not lie to review, during the pendency of a criminal action, exercises of judicial discretion. (Matter of Bloeth v Marks, 20 AD2d 372 [1st Dept 1964], lv denied 15 NY2d 481; Matter of Bloom v Clyne, 69 AD2d 956 [3d Dept 1979].) We note that the trial court and the parties have agreed that further motions addressed to the indictment may be made in that court, should the indictment survive this application. Thus, the issue may be preserved for appellate review. Concur — Kupferman, J. P., Bloom, Kassal, Rosenberger and Ellerin, JJ.