Hyperlawhypertext legal databasebeta In re Gold 54 N.Y.2d 627

← Cases

In re Gold

54 N.Y.2d 627 Court N.Y. Decision date 1981-06-18 English

Contents

Majority

p. 627
In the Matter of Eugene Gold, as District Attorney of Kings County, Respondent, v Stanley Gartenstein, as Judge of the Criminal Court, Respondent, and Darry P., Appellant.
Argued May 5, 1981;
decided June 18, 1981
p. 628
APPEARANCES OF COUNSEL
Bennett M. Lincoff and Caesar D. Cirigliano for appellant.
p. 629
Eugene Gold, District Attorney (Lois M. Raff of counsel), respondent pro se.
Robert Abrams, Attorney-General (Leslie B. Neustadt and Shirley Adelson Siegel of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition dismissed. It was error for Supreme Court to have entertained the application for article 78 relief in the nature of prohibition since that extraordinary remedy may ordinarily be employed only when a court acts or threatens to act “without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59 , 62). Our determination today should not be read as an approval of respondent’s conclusion that CPL 340.40 (subd 7) is unconstitutional, for we merely hold that the extraordinary writ of prohibition is an inappropriate means to address the claimed error in the ruling at Criminal Court in this instance.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fughsberg and Meyer concur in memorandum.

Order reversed, etc.

Cases cited

Statutes and regulations cited