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Mulvaney v. Dubin

55 N.Y.2d 668 Court N.Y. Decision date 1981-11-23 English

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p. 668
In the Matter of James E. Mulvaney, Respondent, v Bernard Dubin, as Justice of the Supreme Court, Queens County, Appellant.
Argued October 15, 1981;
decided November 23, 1981
APPEARANCES OF COUNSEL
John J. Santucci, District Attorney (Michael J. Connolly of counsel), for appellant.
James E. Mulvaney, respondent pro se, precluded.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

p. 669
The Appellate Division should have dismissed the petition for article 78 relief, in the nature of prohibition, to prevent Supreme Court from requiring defendant to give the prosecution a written report of his examination by a court-appointed psychiatrist. The extraordinary remedy of prohibition lies only where 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; Matter of Gold v Gartenstein, 54 NY2d 627 , 629). It is not available, however, as a means of seeking collateral review of an error of law in a pending criminal action (Matter of State of New York v King, supra, p 62 ). The petition here alleges no more than such an error and, therefore, the remedy sought does not lie. The petition should have been dismissed. In light of this disposition, there is no occasion to reach the merits of defendant’s claim.

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

Judgment reversed, etc.

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