Opinion
November 13, 1981
Present — Dillon, P.J., Simons, Hancock, Jr., Denman and Schnepp, JJ.
Application unanimously denied and petition dismissed, without costs. Memorandum: In this CPLR article 78 proceeding in the nature of prohibition, petitioner seeks judgment compelling a County Court Judge to withdraw a decision directing entry of an order of dismissal of a criminal charge of loitering (Penal Law, § 240.35, subd 3) which was filed against petitioner in the City Court of Buffalo. Petitioner was convicted of the charge and on appeal to the County Court, a decision was rendered ordering that the conviction be reversed and the charge be dismissed because of insufficiency of the criminal information. Petitioner contends that because he had waived the insufficiency of the information, County Court exceeded its power under CPL 470.15 in determining that issue. He asks that County Court be prohibited from entering an order on the decision and be directed to decide the constitutionality of subdivision 3 of section 240.35 Penal of the Penal Law. It is well settled that a court may not entertain a collateral proceeding 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), unless the very jurisdiction and power of the court are at issue (Matter of Cosgrove v. Armer, 81 A.D.2d 1042). The petition here claims no more than an error of law and as such it does not assert the kind of abuse or perversion of jurisdiction that would warrant the issuance of a writ of prohibition. (Art 78.)