BURKS v. DONALTY

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of John A. BURKS, Sr., Petitioner, v. Honorable Barry DONALTY, Oneida County Court Judge, and Dennis Vacco, Attorney-General of State of New York, Respondents.

Decided: December 31, 1997

Before GREEN, J.P., and LAWTON, WISNER, CALLAHAN and BOEHM, JJ. John A. Burks, Sr., VanHornesville, for Petitioner. Dennis Vacco, Attorney General by Laura Etlinger, Albany, for Respondents.

 In this CPLR article 78 proceeding, petitioner has failed to establish entitlement to the relief sought by way of either prohibition or mandamus.   With respect to prohibition, petitioner failed to show a clear legal right to the relief sought and that respondents are proceeding or are about to proceed “without or in excess of jurisdiction” (CPLR 7803[2];  see, Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276;  Matter of Rush v. Mordue, 68 N.Y.2d 348, 352-353, 509 N.Y.S.2d 493, 502 N.E.2d 170;  La Rocca v. Lane, 37 N.Y.2d 575, 578-579, 376 N.Y.S.2d 93, 338 N.E.2d 606, cert. denied 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734), and petitioner has available an adequate remedy at law (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).   Similarly, mandamus is a remedy that is available only where there is established a clear legal right to the relief sought and then only to compel the performance of a purely ministerial act that does not involve the exercise of judgment or discretion (see, Matter of Crain Communications v. Hughes, 74 N.Y.2d 626, 628, 541 N.Y.S.2d 971, 539 N.E.2d 1099, rearg. denied 74 N.Y.2d 843, 546 N.Y.S.2d 559, 545 N.E.2d 873;  Matter of Goetz v. Crane, 111 A.D.2d 729, 730, 491 N.Y.S.2d 5, lv. denied 65 N.Y.2d 609, 494 N.Y.S.2d 1028, 484 N.E.2d 671).

 Further, neither prohibition nor mandamus may be utilized to review errors of law that occur during a criminal proceeding, “however egregious and however unreviewable” (Matter of State of New York v. King, supra, at 62, 364 N.Y.S.2d 879, 324 N.E.2d 351), including some errors of constitutional magnitude (see, Matter of Rush v. Mordue, supra, at 354, 509 N.Y.S.2d 493, 502 N.E.2d 170;  La Rocca v. Lane, supra, at 580, 376 N.Y.S.2d 93, 338 N.E.2d 606).   Petitioner seeks collateral review of alleged errors of law in the pending criminal proceeding against him, all of which may be raised on direct appeal.

Petition unanimously dismissed without costs.

MEMORANDUM: