Veloz v. Rothwax

• Decision Date: 11 July 1985
• Citation: 483 N.E.2d 127,65 N.Y.2d 902,493 N.Y.S.2d 452
• Parties: , 483 N.E.2d 127 In the Matter of Marcos VELOZ, Respondent, v. Harold ROTHWAX, as Acting Justice of the Supreme Court, New York County, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 452

493 N.Y.S.2d 452

65 N.Y.2d 902, 483 N.E.2d 127

In the Matter of Marcos VELOZ, Respondent, v. Harold ROTHWAX, as Acting Justice of the Supreme Court, New York County, et al., Appellants.

Court of Appeals of New York.

July 11, 1985.

Robert M. Morgenthau, Dist. Atty., New York City (Vija Kemanis, New York City, of counsel), for appellants.

Michele Maxian and Caesar D. Cirigliano, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The judgment of the Appellate Division, 103 A.D.2d 715, 478 N.Y.S.2d 14, should be reversed, without costs, and the petition dismissed.

CPL 255.20(1) prescribes a minimum, fixed time period of 45 days in which a defendant may make pretrial motions. This provision carefully balances considerations of judicial economy (People v. Lawrence, 64 N.Y.2d 200, 204-205, 485 N.Y.S.2d 233, 474 N.E.2d 593) with defendant's need for adequate time in which to prepare and make pretrial motions. A trial court may not, sua sponte, alter this statutory time period (People v. Douglass, 60 N.Y.2d 194, 205, 459 N.Y.S.2d 56, 456 N.E.2d 1179). Thus, we agree with the Appellate Division that respondent lacked the authority to shorten the statutory time period in which to make pretrial motions.

We hold, however, that the Appellate Division erred in granting the petition seeking an order, pursuant to article 78 and in the nature of a writ of mandamus, compelling respondent to render a merits determination upon petitioner's omnibus motion (CPL 255.20). Respondent's misconstruction of CPL 255.20 constitutes an error of law, in a pending criminal action, which is not subject to relief in the nature of a writ of mandamus. (Matter of Legal Aid Socy. v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542; La Rocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 338 N.E.2d 606.) Moreover, since petitioner may obtain judicial review of his claim on direct appeal from a judgment of conviction, it is impermissible to disrupt the criminal proceedings by resort to the extraordina writ of mandamus. (Matter of Legal Aid Socy. v. Scheinman, supra, at p. 16, 439 N.Y.S.2d 882, 422 N.E.2d 542; Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 147, 464 N.Y.S.2d 392, 451 N.E.2d 150.)

In prior cases, this court has converted, or permitted conversion of, proceedings brought by the People seeking writs of prohibition to actions for declaratory judgment where the obvious effect of the criminal court's ruling extended far beyond the case at bar. (Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 153, 464 N.Y.S.2d 392, 451 N.E.2d 150, supra; Matter of Morgenthau v. Roberts, 65 N.Y.2d 749, 492 N.Y.S.2d 21, 481 N.E.2d 561.) Defendant, properly concerned only with...