Opinion
October 5, 1992
Adjudged that the proceeding is dismissed, without costs or disbursements.
"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court — in cases where judicial authority is challenged — acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Matter of Holtzman v Goldman, 71 N.Y.2d 564, 569; see, Matter of Rush v Mordue, 68 N.Y.2d 348, 352). Further, the "extraordinary remedy of prohibition is never available merely to correct or prevent trial errors of substantive law or procedure, however grievous" (La Rocca v Lane, 37 N.Y.2d 575, 579, cert denied 424 U.S. 968), nor is it available if there exists "an adequate remedy, by way of appeal or otherwise" (Matter of Molea v Marasco, 64 N.Y.2d 718, 720; see, Matter of Morgenthau v Erlbaum, 59 N.Y.2d 143, cert denied 464 U.S. 993). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 N.Y.2d 12, 16).
The petitioner here has failed to demonstrate a clear legal right to any of the remedies sought. We particularly note that his pretrial motion to dismiss was made well beyond 45 days after arraignment and was thus untimely (see, CPL 255.20). Therefore, the court did not act in excess of its jurisdiction when it refused to consider the motion, and the People were not required to respond to the motion. We further note that several of the claims found in the petitioner's motion to dismiss can be raised in a proper post-judgment motion or upon appeal from his conviction. For these reasons, the extraordinary remedies of a writ of prohibition and/or mandamus do not properly lie and the proceeding must be dismissed. Mangano, P.J., Thompson, Bracken, Sullivan and Harwood, JJ., concur.