Summary
holding writ of prohibition unavailable to correct trial error, but noting that “[t]he respondent Justice's order to petitioner, the District Attorney, compelling petitioner to provide fillers' for a lineup to be conducted during the trial ... was without foundation in law”
Summary of this case from People v. SharpOpinion
March 18, 1999
Petition pursuant to CPLR article 78 for a writ of prohibition to prohibit the Honorable Frank Torres from enforcing an order directing petitioner to conduct a lineup, during a trial, in the action entitled People v. Santos Alvarez, and for a writ of mandamus to direct the respondent Justice to compel respondent Santos Alvarez to appear in court for the purpose of in-court indentification, unanimously denied and the proceeding dismissed, without costs.
The People have the right to compel a defendant in a criminal case to be present in court for the purpose of an in-court identification. ( People v. Winship, 309 N.Y. 311, 313-314; see also, People v. Scarola, 71 N.Y.2d 769, 779.) The respondent Justice's order to petitioner, the District Attorney, compelling petitioner to provide "fillers" for a lineup to be conducted during the trial of Santos Alvarez was without foundation in law.
However, it is clear that article 78 prohibition and mandamus are available only when there is an "unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action of proceeding" ( Matter of State of New York v. King, 36 N.Y.2d 59, 64). An article 78 proceeding is simply unavailable to correct a trial error of substantive law or procedure, however grievous it may be. ( La Rocca v. Lane, 37 N.Y.2d 575, 579, cert denied 424 U.S. 968; Matter of Veloz v. Rothwax, 65 N.Y.2d 902; Matter of Mulvaney v. Dubin, 55 N.Y.2d 668.)
Concur — Sullivan, J. P., Rosenberger, Rubin, Saxe and Buckley, JJ.