Opinion
June 27, 1985
The petitioner in the instant proceeding stands charged in an indictment, handed up by a New York County Grand Jury, with four counts of an attempt to commit the crime of murder in the second degree, four counts of assault in the first degree, one count of criminal possession of a weapon in the second degree, and one count of reckless endangerment in the first degree. In this article 78 proceeding, petitioner maintains that the respondent, Acting Justice of the Supreme Court, abused his discretion in granting respondent District Attorney's application for resubmission of charges pursuant to CPL 190.75 (3).
We conclude that the proceeding must be dismissed. The remedy of prohibition does not lie as a means of seeking collateral review of an alleged error of law in a pending criminal matter. ( Matter of Gold v. Gartenstein, 54 N.Y.2d 627; Matter of State of New York v. King, 36 N.Y.2d 59.) Article 78 jurisdiction also does not lie to review, during the pendency of a criminal action, exercises of judicial discretion. ( Matter of Bloeth v. Marks, 20 A.D.2d 372 [1st Dept 1964], lv denied 15 N.Y.2d 481; Matter of Bloom v. Clyne, 69 A.D.2d 956 [3d Dept 1979].)
We note that the trial court and the parties have agreed that further motions addressed to the indictment may be made in that court, should the indictment survive this application. Thus, the issue may be preserved for appellate review.
Concur — Kupferman, J.P., Bloom, Kassal, Rosenberger and Ellerin, JJ.