Opinion
September 23, 1977
Present — Marsh, P.J., Moule, Denman, Goldman and Witmer, JJ.
Motion unanimously granted and petition dismissed, without costs. Memorandum: Petitioner has applied for an order pursuant to CPLR article 78 prohibiting respondents Hon. Donald Mark, Monroe County Court Judge, and Lawrence Kurlander, District Attorney of the County of Monroe, from proceeding to trial on certain pending indictments and ordering dismissal of those indictments on the ground that his rights under CPL article 580 have been violated by reason of the failure to proceed with the disposition of those indictments within the time limits set forth in articles III and IV of the Agreement on Detainers. The threshold question which must be considered is whether petitioner is entitled to use the extraordinary remedy of a writ of prohibition. We conclude that he is not. The Court of Appeals has consistently held that an article 78 proceeding for a judgment prohibiting the District Attorney and the Judge of the County Court from proceeding on an indictment will not lie where it is claimed that the defendant has been denied his right to a speedy trial — whether that claim is based on statutory or constitutional grounds. (Matter of Lopez v Justices of Supreme Ct. of N.Y. County, 36 N.Y.2d 949; Matter of Scranton v Supreme Ct. of State of N.Y., 36 N.Y.2d 704; Matter of Watts v Supreme Ct. of State of N.Y. Criminal Term, County of Tioga, 28 N.Y.2d 714; Matter of Lee v County Ct. of Erie County, 27 N.Y.2d 432, 437, cert den 404 U.S. 823; Matter of Blake v Hogan, 25 N.Y.2d 747. ) Such a claim involves "errors of substantive or procedural law * * * not cognizable by way of prohibition" and must be reviewed, if at all, on an appeal in the criminal action (La Rocca v Lane, 37 N.Y.2d 575, 580, cert den 424 U.S. 968). (Art 78.)