IN RE: Jacques L. RIVETTE (1997)

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] ) to prohibit respondent Rensselaer County Judge from enforcing an order appointing respondent Peter J. Moschetti Jr. as special prosecutor in a criminal action against petitioner.

Petitioner commenced this CPLR article 78 proceeding in the nature of prohibition, claiming that respondent Rensselaer County Judge (hereinafter respondent) acted in excess of his authority in appointing a special prosecutor to represent the People in a criminal matter against him.   Petitioner has already been convicted of the charges contained in the indictment filed against him and his appeal from this conviction is now pending.

The question of the exercise of respondent's discretion in appointing a special prosecutor under County Law § 701 is not the proper subject for review in a CPLR article 78 proceeding which requests relief by way of prohibition (see, Matter of Kavanagh v. Vogt, 58 N.Y.2d 678, 679, 458 N.Y.S.2d 527, 444 N.E.2d 991;  Matter of Dentes v. Friedlander, 167 A.D.2d 757, 563 N.Y.S.2d 319).   Inasmuch as petitioner has an adequate remedy at law, i.e., direct appeal from his conviction (see, Matter of Carney v. Feldstein, 193 A.D.2d 1016, 1017, 597 N.Y.S.2d 982), this proceeding must be dismissed (see, Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351).

ADJUDGED that the petition is dismissed, without costs.

CASEY, Justice.

MIKOLL, J.P., and CREW, YESAWICH and SPAIN, JJ., concur.