VARGASON v. BRUNETTI (1997)

Petitioner, the District Attorney of Cayuga County, commenced this CPLR article 78 proceeding in the nature of prohibition, seeking to vacate a judgment of Supreme Court.   In that judgment, the court granted a petition for a writ of habeas corpus, vacating bail on a charge of contempt in violation of Judiciary Law § 750 and reducing bail on two criminal charges.   We conclude that prohibition is not an appropriate remedy in this situation and that the petition should be dismissed.

 Prohibition is an extraordinary remedy available only when an officer or public body performing judicial or quasi-judicial functions is acting without or in excess of jurisdiction (Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170).  “[T]he excess must be one which goes to ‘the very authority or power and, thus, jurisdiction of the officer, not to a mere mistake or “an error in procedure or substantive law” ’ ” (Matter of Morgenthau v. Altman, 58 N.Y.2d 1057, 1058, 462 N.Y.S.2d 629, 449 N.E.2d 409, quoting Matter of Dondi v. Jones, 40 N.Y.2d 8, 15, 386 N.Y.S.2d 4, 351 N.E.2d 650, rearg. denied 39 N.Y.2d 1058, 387 N.Y.S.2d 1033, 355 N.E.2d 393).   A defendant who contends that a criminal court has unlawfully set bail or that the amount of bail is excessive may seek a writ of habeas corpus (see, CPLR 7010[b];  People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 307 N.Y.S.2d 207, 255 N.E.2d 552).   In determining the petition, the court may consider “whether the court [that set bail] abused its discretion pursuant to CPL 510.30 or violated a constitutional standard prohibiting excessive bail or its arbitrary refusal” (People ex rel. Robinson v. Campbell, 184 A.D.2d 988, 585 N.Y.S.2d 604;  see also, People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 232, 422 N.Y.S.2d 55, 397 N.E.2d 745;  People ex rel. Hunt v. Warden of Riker's Is. Correctional Facility, 161 A.D.2d 475, 476, 555 N.Y.S.2d 742, lv. denied 76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676).   Thus, the court did not act in excess of its jurisdiction in determining the issues raised in the petition for a writ of habeas corpus.

 Moreover, prohibition is not available where, as here, petitioner seeks review of a determination already made, not the restraint of a continuing exercise of authority (see, Matter of Bradford v. Helman, 24 A.D.2d 937, 264 N.Y.S.2d 930, appeal dismissed 385 U.S. 15, 87 S.Ct. 162, 17 L.Ed.2d 15) and a direct appeal from the judgment granting the writ of habeas corpus is available (see, CPLR 7011;  see also, Matter of Roberts v. County Ct. of Wyoming County, 39 A.D.2d 246, 248, 333 N.Y.S.2d 882, affd. 34 N.Y.2d 246, 248-249, 356 N.Y.S.2d 853, 313 N.E.2d 335;  cf., Matter of Tyler v. Forma, 231 A.D.2d 891, 647 N.Y.S.2d 314 ).

Petition unanimously dismissed without costs.

MEMORANDUM: