Opinion
July 6, 1976
Proceeding pursuant to CPLR article 78 to prohibit the County Court Judges and the District Attorney of Nassau County from enforcing the rules and regulations governing the "Operation Midway" program insofar as they limit the application of the program to defendants who are residents of Nassau County. Proceeding dismissed, without costs or disbursements. The objectives and structure of the program are described in Matter of Dillon v County Ct. of Nassau County ( 53 A.D.2d 851). In short, the petitioner, indicted for forgery in the second degree, and a resident of Queens County, contends that the rules and regulations of the "Operation Midway" program, confining eligibility for participation therein to residents of Nassau County, are unconstitutional in that they violate the equal protection clause. His argument is based on the thesis that the program cannot validly discriminate between residents of counties within the State. We do not find any compelling reason to entertain this proceeding which, in effect, seeks to review the action of the respondents in denying the petitioner the opportunity to participate in the program. As was stated in Matter of Dillon v County Ct. of Nassau County, (supra), and following the cases cited therein (La Rocca v Lane, 37 N.Y.2d 575, 578-581, cert den 424 U.S. 968; Matter of State of New York v King, 36 N.Y.2d 59, 62-63), discretionary rulings affecting a defendant in the course of a criminal case should not be the subject of article 78 proceedings. Questions of the constitutionality of the procedure should await the outcome of the charges and be reviewed, as in other cases, by appeal. If, indeed, the petitioner's rights have been violated, appropriate relief can be granted on appeal (cf. People v Bennet, 39 A.D.2d 320). Though we express no opinion as to the constitutionality of the program at this time, it should be drawn to the attention of the respondents that discriminatory enforcement of the law administratively may be enjoined (Yick Wo v Hopkins, 118 U.S. 356; see cases and materials cited in People v Bennet, supra, pp 325-326). Hopkins, Acting P.J., Martuscello, Margett, Damiani and Hawkins, JJ., concur.