Opinion
May 27, 1981
Present — Cardamone, J.P., Doerr, Denman and Moule, JJ.
Application unanimously denied and petition dismissed, without costs. Memorandum: The petitioner, District Attorney of Erie County, instituted this original article 78 proceeding in the nature of prohibition. He seeks a judgment prohibiting respondent, a Justice of the Supreme Court, from giving certain jury instructions in a criminal case which involves a driving while intoxicated charge. In petitioner's view, the proposed charge erroneously permits the jury to consider the punishment to be imposed upon finding defendant guilty. While conceding that respondent has jurisdiction in the case, the District Attorney argues that respondent's allegedly legally incorrect charge is an act in excess of respondent's jurisdiction. At issue is whether the proposed charge is simply a question of law erroneously decided by a trial court or action in excess of the trial court's legitimate powers which cannot be cured by an adequate remedy either at law or in equity, or by appeal. Even assuming the accuracy of every claim in the petition, the writ may not issue. A court may not entertain a collateral proceeding, as this is, in a pending criminal case to review an alleged error of law, even if it is otherwise unreviewable (Matter of State of New York v King, 36 N.Y.2d 59, 62, 64; see Matter of Jaffe v Scheinman, 47 N.Y.2d 188, 192-193; cf. Matter of Steingut v Gold, 42 N.Y.2d 311, 315). The writ may issue under such circumstance only where the very jurisdiction and power of the court are at issue. We view this petition as alleging merely an error of law, which it clearly is, and as such it does not assert the kind of abuse or perversion of a trial court's jurisdiction as would warrant the issuance of a writ of prohibition. (Art 78.)