State v. King

• Decision Date: 17 January 1975
• Citation: 36 N.Y.2d 59,324 N.E.2d 351,364 N.Y.S.2d 879
• Parties: , 324 N.E.2d 351 In the Matter of the STATE of New York, Respondent, v. Gilbert H. KING, as a Justice of the Supreme Court of the State of New York, Respondent, and John Hill et al., Intervenors-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 879

364 N.Y.S.2d 879

36 N.Y.2d 59, 324 N.E.2d 351

In the Matter of the STATE of New York, Respondent, v. Gilbert H. KING, as a Justice of the Supreme Court of the

State of New York, Respondent, and John Hill et

al., Intervenors-Appellants.

Court of Appeals of New York.

Jan. 17, 1975.

William M. Kunstler, Ramsey Clark, New York City, Dennis Cunningham, Buffalo, Margaret L. Ratner, New York City, and Herman Schwartz, Amherst, for intervenors-appellants.

Douglas S. Cream, Buffalo, for Gilbert H. King, respondent.

Louis R. Aidala and James W. Grable, Sp. Asst. Attys. Gen., for State of N.Y., respondent.

BREITEL, Chief Judge.

The threshold issue on this appeal is whether prohibition or mandamus under CPLR article 78 may lie to undo what may be assumed to be an egregious error of law in a criminal action, and which, for the purposes of the present review, may also be assumed to have been prejudicial to the rights of the People who instituted the special proceeding. If this be a correct statement of the issue it must be resolved in the negative and the judgment rendered by the Appellate Division reversed and the People's petition dismissed.

As part of a series of criminal prosecutions stemming from the prison take-over and its quelling at the State Correctional Facility at Attica, New York, in September, 1971, there is pending in Erie County a criminal action in which two prison inmates are charged with murder. The picking of a trial jury in the action was to have started early this month. Defendants moved for a direction entitling them to more than 20 peremptory challenges to veniremen in the selecting of a trial jury, the number prescribed by statute (CPL 270.25). After two days of discussion between court and counsel divided by a lapse of one day, the trial court directed that defendants would be entitled to 30 rather than 20 peremptory challenges. It also denied the People an equal number of challenges, that is, an increase of 10 over the 20 prescribed by statute.

During colloquy the People urged that the trial court's action was without statutory authority and violated precedents under the predecessor statute to the CPL provision which was to the same effect (former Code Crim.Proc., § 373; People v. Anthony, 24 N.Y.2d 696, 703, 301 N.Y.S.2d 961, 965, 249 N.E.2d 747, 749; People v. Doran, 246 N.Y. 409, 426, 159 N.E. 379, 385). The People stressed that the court's arrogation of power in the face of the plain meaning of the statute and the applicable precedents would never be reviewable on appeal because of the statutory limitations on appeals in criminal actions (CPL 450.10 et seq.). Failing to persuade the trial court the People began this proceeding and succeeded in obtaining a favorable judgment from a divided Appellate Division directing the trial court to adhere to the literal provisions of the applicable statute. Defendants, appellants here, now urge that the special proceeding may not lie and that the trial court's ruling, if error, which they do not concede, is beyond review.

The division in the Appellate Division was not on the merits of the error charged. Two of the Justices dissented on the sole ground that the proceeding would not lie. The dissents were correct, this court concludes, and the judgment must be reversed and the petition should be dismissed. The courts may not entertain a collateral proceeding to review an error of law in a pending criminal action, however egregious and however unreviewable, by way of immediate appeal or by appeal after final judgment of conviction or acquittal, whichever may eventuate.

The applicable principles which determine the result are clear.

The extraordinary remedy either of prohibition or mandamus lies only where there is a clear legal right, and in the case of prohibition only when a court (if a court is involved) 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 (see, e.g., Proskin v. County Ct. of Albany County, 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 45, 280 N.E.2d 875; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 436--437, 318 N.Y.S.2d 705, 707--708, 267 N.E.2d 452, 453--454; Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335--336, 274 N.Y.S.2d 881, 884--885, 221 N.E.2d 546, 549).

Repeated many times in the precedents, and most recently in Matter of Roberts v. County Ct. of Wyoming County (34 N.Y.2d 246, 248, 356 N.Y.S.2d 853, 313 N.E.2d 335): errors of law, which of course may be verbalized, but incorrectly, as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ. Evidently lending confusion, but inexcusably, is the corollary principle that even if there has been an excess of jurisdiction or power, the extraordinary remedy will not lie if there is available an adequate remedy at law of which appeal is but one, which may bar the extraordinary remedy (Proskin v. County Ct. of Albany County, Supra; Matter of Roberts v. County Ct. of Wyoming County, Supra). It is equally clear, however, that nonreviewability by way of appeal alone, does not provide a basis for reviewing error by collateral proceeding in the nature either of prohibition or mandamus (see, contra, Matter of Roberts v. County Ct. of Wyoming County, 39 A.D.2d 246, 248, 333 N.Y.S.2d 882, affd. on different grounds 34 N.Y.2d 246, 248, 356 N.Y.S.2d 853, 313 N.E.2d 335, Supra).

The reason for the comment last made is simply stated. The right of review by appeal in criminal matters, except in capital cases, is determined exclusively by statute (People v. Zerillo, 200 N.Y. 443, 446, 93 N.E. 1108, 1109). This has always been so and the underlying policy is to limit appellate proliferation in criminal matters, sometimes to the seeming detriment of the defendant and sometimes to the detriment of the People. Litigation may be compounded unduly by protracted and multifarious appeals and collateral proceedings frustrating the speedy determination of disputes. Moreover, the frustration may be accomplished by skillful manipulation of appeals and collateral proceedings by those interested in delay.

The present proceeding is quite illustrative. It arises in one of a series of Attica-related criminal actions, in which there has been a proliferation of direct and collateral proceedings and appeals, none addressed to the merits, while only a token of the prosecutions have gone to trial concluded (see, e.g., People v. Sekou, 45 A.D.2d 982; Matter of Attica Bros....