James N. v. D'Amico

OPINION OF THE COURT Denman, J. P. In this original CPLR article 78 proceeding in the nature of prohibition, petitioner challenges a determination of respondent County Judge D’Amico which granted the application of respondent District Attorney for an order directing petitioner to provide a dental cast impression to aid authorities in investigation of a homicide. Petitioner concedes that the court had jurisdiction to hear the application but contends that the court exceeded its jurisdiction because the District Attorney failed to establish probable cause that petitioner committed the crime (see, Matter of Abe A., 56 NY2d 288). We need not address the probable cause issue because we determine that prohibition does not lie to obtain collateral review of an order directing a suspect to supply corporeal evidence. The ancient writ of prohibition is an "extraordinary” remedy whose availability to review a ruling in a criminal proceeding is severely circumscribed (see, Matter of Holtzman v Goldman, 71 NY2d 564, 569; Matter of State of New York v King, 36 NY2d 59, 62-64). An application by the District Attorney to compel an individual to supply corporeal evidence is a criminal proceeding (Matter of Santangello v People, 38 NY2d 536, 538; Matter of Alphonso C. [Morgenthau], 38 NY2d 923, 924-925; see, CPL 1.20 [18] [b]). Prohibition is available only where there is a clear legal right to such relief, and then only where a court acts or threatens to act either without jurisdiction or in excess of its authorized powers (Matter of Holtzman v Goldman, supra; Matter of Rush v Mordue, 68 NY2d 348, 352). Prohibition does not lie to correct a mere error of law, however egregious the error and however cleverly it may be characterized as an excess of jurisdiction or power (Matter of Rush v Mordue, supra, at 353). Although the distinction is not easily made between mere errors of law and actions in excess of the court’s powers, abuses of power may be identified by their impact upon the entire proceeding, as [304] distinguished from substantive or procedural errors committed within a proceeding which is properly maintained (Matter of Holtzman v Goldman, supra; Matter of Rush v Mordue, supra, at 357; Matter of State of New York v King, supra, at 64). "Even in those rare circumstances where an arrogation of power would justify burdening the judicial process with collateral intervention and summary correction, the writ of prohibition nonetheless does not issue as of right, but only in the sound discretion of the court” (Matter of Rush v Mordue, supra, at 354). Factors which enter into that exercise of discretion include the gravity of the harm which would result from the order challenged and whether the remedy of prohibition will completely and efficaciously rectify that harm (Matter of Rush v Mordue, supra). Additionally, the writ of prohibition does not lie where another remedy is available, of which appeal is but one (see, Matter of Lipari v Owens, 70 NY2d 731, 732-733; Matter of State of New York v King, supra, at 62). Moreover, even where appeal might not be available, there is a strong policy against the proliferation of litigation in criminal matters because it frustrates their speedy determination (Matter of State of New York v King, supra, at 63-64). Applying those principles, we conclude that, because the order challenged is equivalent to the issuance of a search warrant (see, Matter of Abe A., supra, at 294), use of the writ of prohibition would violate the well-established rules governing use of the writ and defeat the underlying policies of limiting proliferation of litigation in criminal cases and avoiding consequent delays in investigation and prosecution. Judge D’Amico had jurisdiction to entertain an application by the District Attorney for an order directing petitioner to supply corporeal evidence and was empowered to make a probable cause determination within the context of that application (see, Matter of Abe A., supra; CPL 240.40 [2]). Petitioner’s challenge to the order — that it was issued on less than probable cause — merely asserts a substantive error of law and does not demonstrate, as would be required to sustain the petition, that the court exceeded its power. This is not one of "those rare circumstances where [there has been] an arrogation of power [which] would justify burdening the judicial process with collateral intervention and summary correction” (Matter of Rush v Mordue, supra, at 354). The harm sought to be prevented, that petitioner submit to a dental cast impression, does not justify issuance of the extraordinary writ. Judge D’Amico found that the procedure [305] is safe and the intrusion minimal, and petitioner does not challenge those findings. Generally, the ordeal of a criminal trial and possibility of conviction are insufficiently harmful to warrant use of the writ (Matter of Rush v Mordue, supra, at 354; Matter of Dondi v Jones, 40 NY2d 8, 14). Finally, the order, like any probable cause determination, may be challenged by a suppression motion and reviewed on direct appeal if petitioner is convicted (see, e.g., People v Casadei, 66 NY2d 846, 847). Although we recognize that the Court of Appeals in Abe A. alluded to use of an article 78 proceeding to challenge an order directing petitioner to supply corporeal evidence (see, Matter of Abe A., supra, at 296, n 3), we conclude that the court’s dictum must give way to the overriding policies of discouraging piecemeal appeals in criminal proceedings and preventing consequent delays in prosecution. Indeed, this article 78 proceeding has resulted in a six-month delay in this investigation. For the same reasons, we reject the holdings of the Second and Third Departments in Matter of David M. v Dwyer (107 AD2d 884) and Matter of Barber v Rubin (72 AD2d 347) permitting a collateral challenge to corporeal evidence orders by writ of prohibition. In Matter of Barber v Rubin (supra), cited favorably by the Court of Appeals in Abe A., the Second Department permitted collateral review of a corporeal evidence order made in a pending criminal prosecution (Matter of Barber v Rubin, supra, at 349-351). In the context of that case, the order was equivalent to an order directing discovery (see, CPL 240.40 [2]). Permitting collateral review of a discovery order is totally at odds with standard criminal procedure. Consequently, we do not approve the liberal use of the writ of prohibition sanctioned by the court in Barber. To the extent our decision in Matter of Gary S. v Houston (92 AD2d 749) is inconsistent with our holding here, that decision is overruled. The concurring opinion equates a court’s determination which is not supported by probable cause with an act in excess of the court’s jurisdiction. Employing that rationale, we would review any probable cause determination by means of a writ of prohibition. All orders authorizing searches and seizures, which the subject order is (Matter of Abe A., supra, at 294; CPL 690.05 [2]), must be supported by probable cause but the means of reviewing that determination is provided exclusively by statute (Matter of State of New York v King, supra, at 63). Accordingly, the petition should be dismissed.