Brown v. Golia

—Proceeding pursuant to CPLR article 78 in the nature of prohibition to enjoin the respondent Joseph G. Golia, a Justice of the Supreme Court, from enforcing so much of an order of the Supreme Court, Queens County, dated January 31, 1995, as directs the 417 petitioner, the District Attorney of Queens County, to conduct a retention hearing pursuant to CPL 730.50 and to transport the respondent Tatiana B., a defendant in a criminal action pending in the Supreme Court, Queens County, under Indictment No. 182/89, to that hearing. Adjudged that the petition is granted, on the law, without costs or disbursements, and the respondent is enjoined from enforcing the order dated January 31,1995, insofar as it directs the District Attorney of Queens County to conduct a retention hearing pursuant to CPL 730.50 and to transport the respondent Tatiana B. to the hearing. It is clear from the language of CPL 730.50 (2) that the District Attorney is not a proper party to a retention hearing and that such a hearing must be conducted by the court that issued the temporary order of commitment (cf., People v Pasternack, 113 Misc 2d 317). Justice Golia exceeded his authority when he ordered the District Attorney to conduct a retention hearing and to transport the respondent Tatiana B. to the hearing (see generally, Matter of Holtzman v Hellenbrand, 130 AD2d 749). Therefore, the petition must be granted. Thompson, J. P., Friedmann, Krausman and Florio, JJ., concur.