Arcuri v. Kirk

• Decision Date: 27 September 1996
• Citation: Arcuri v. Kirk, 647 N.Y.S.2d 644, 231 A.D.2d 962 (N.Y. App. Div. 1996)
• Parties: Matter of Susan M. ARCURI, Petitioner, v. Honorable Patrick L. KIRK, Herkimer County Court Judge, and Michael E. Daley, Herkimer County District Attorney, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 644

647 N.Y.S.2d 644

231 A.D.2d 962

Matter of Susan M. ARCURI, Petitioner, v. Honorable Patrick L. KIRK, Herkimer County Court Judge, and Michael E. Daley, Herkimer County District Attorney, Respondents.

Supreme Court, Appellate Division Fourth Department.

Sept. 27, 1996.

Robert P. Moran, Utica, for Petitioner.

Dennis Vacco, Attorney General (Steven Fortum, of counsel), Utica, Michael E. Daly, Herkimer, for Respondent.

Before GREEN, J.P., and LAWTON, FALLON, CALLAHAN and DOERR, JJ.

MEMORANDUM.

Petitioner in this CPLR article 78 proceeding seeks a judgment prohibiting respondents from proceeding to trial on counts one and three of Herkimer County indictment No. 96-33. She asserts that a writ of prohibition should be granted because Herkimer County Court lacks geographic jurisdiction over those counts (see generally, Matter of Steingut v. Gold, 42 N.Y.2d 311, 397 N.Y.S.2d 765, 366 N.E.2d 854). Petitioner does not challenge count five of the indictment, which alleges that petitioner sold drugs in Herkimer County on January 23, 1996.

Petitioner was charged in a Herkimer County indictment with the crimes of criminal sale of a controlled substance in the first degree, committed on January 30, 1996 (count one), and criminal sale of a controlled substance in the second degree, committed on January 24, 1996 (count three). Both counts allege that defendant sold cocaine in the Village of Herkimer. In their bill of particulars, the People allege with respect to those counts that petitioner facilitated and acted as the accomplice to sales between the codefendant and a third party in the Village of Herkimer. The record indicates that, while in Oneida County, petitioner provided the codefendant with the cocaine that he had agreed to sell to the third party and that petitioner knew that the cocaine was to be resold in Herkimer County.

A writ of prohibition is an extraordinary remedy that will be granted "only where there is a clear legal right" and when a court "acts or threatens to act without jurisdiction in a matter of 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 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351). Moreover, even if a court acts in excess of jurisdiction or power, prohibition will not lie if there exists an adequate remedy at law, including an appeal (Matter of State of New York v. King, supra, at 62, 364 N.Y.S.2d 879, 324 N.E.2d 351).

Petitioner has failed to establish a clear legal right to entitle her to a writ of prohibition. CPL 20.40(1)(a) endows a county with geographic jurisdiction to prosecute an offense where an element of the crime charged is committed within the county. Because the sales or agreements to sell cocaine set forth in counts one and three of the indictment are alleged to have occurred in Herkimer County, respondents at least arguably have geographic jurisdiction over those offenses pursuant to CPL 20.40(1)(a) (see, People v. Pilgrim, 67 A.D.2d 554, 555, 415 N.Y.S.2d 876, affd. 52 N.Y.2d 730, 436 N.Y.S.2d 265, 417 N.E.2d 559).

The record also supports the conclusion that respondents have...