Opinion
OP 02-00439
October 1, 2002.
An original CPLR article 78 proceeding commenced in this Court on February 25, 2002, in which petitioner seeks relief in the nature of prohibition and mandamus.
L.F. WALENTYNOWICZ, GRAND ISLAND, FOR PETITIONER.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DON I. DALLY OF COUNSEL), INTERVENOR-RESPONDENT PRO SE.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said petition be and the same hereby is unanimously dismissed without costs.
Memorandum:
Petitioner commenced this original proceeding pursuant to CPLR article 78 seeking relief in the nature of prohibition ( see CPLR 7803) and mandamus ( see 7803 [3]). Neither of those extraordinary remedies is available to prevent enforcement of the amended order issued by respondent on the appeal by petitioner of his conviction. Petitioner has not established either a clear legal right to relief or that respondent acted without jurisdiction in issuing the amended order ( see Matter of State of New York v. King, 36 N.Y.2d 59, 62; see also Matter of Morgenthau v. Altman, 58 N.Y.2d 1057, 1058). Further, neither prohibition nor mandamus lies as a means to obtain collateral review of an alleged error of law, particularly where, as here, there is an adequate remedy at law by way of a direct appeal ( see King, 36 N.Y.2d at 62-63; see also Matter of Collins v. Lamont, 273 A.D.2d 528, 530).