Mulvaney v. Dubin
| Decision Date | 23 November 1981 |
| Citation | 446 N.Y.S.2d 931,55 N.Y.2d 668,431 N.E.2d 292 |
| Parties | , 431 N.E.2d 292 In the Matter of James E. MULVANEY, Respondent, v. Bernard DUBIN, as Justice of the Supreme Court, Queens County, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The judgment of the Appellate Division, 80 A.D.2d 566, 435 N.Y.S.2d 761, should be reversed, without costs, and the petition dismissed.
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 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351; Matter of Gold v. Gartenstein, 54 N.Y.2d 627, 629, 442 N.Y.S.2d 504, 425 N.E.2d 892). 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, 36 N.Y.2d 62, 364 N.Y.S.2d 879, 324 N.E.2d 351). 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.
Judgment reversed, etc.
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