Rivette v. McGrath

Casey, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to prohibit respondent Rensselaer County Judge from enforcing an order appointing respondent Peter J. Moschetti, Jr. as special prosecutor in a criminal action against petitioner. Petitioner commenced this CPLR article 78 proceeding in the nature of prohibition, claiming that respondent Rensselaer County Judge (hereinafter respondent) acted in excess of his authority in appointing a special prosecutor to represent the People in a criminal matter against him. Petitioner has already been convicted of the charges contained in the indictment filed against him and his appeal from this conviction is now pending. The question of the exercise of respondent’s discretion in appointing a special prosecutor under County Law § 701 is not the proper subject for review in a CPLR article 78 proceeding which requests relief by way of prohibition (see, Matter of Kavanaugh v Vogt, 58 NY2d 678, 679; Matter of Dentes v Friedlander, 167 AD2d 757). Inasmuch as petitioner has an adequate remedy at law, i.e., direct appeal from his conviction (see, Matter of Carney v Feldstein, 193 AD2d 1016, 1017), this proceeding must be dismissed (see, Matter of State of New York v King, 36 NY2d 59, 62). [718] Mikoll, J. P., Crew III, Yesawich Jr. and Spain, JJ., concur. Adjudged that the petition is dismissed, without costs.