MATTER OF JACOBS v. ALTMAN, 69 N.Y.2d 733 (1987)

512 N.Y.S.2d 361, 504 N.E.2d 688

In the Matter of THOMAS L. JACOBS, as Commissioner of the New York City Probation Department, Appellant, v. HERBERT ALTMAN, as Justice of the New York County Supreme Court, Criminal Term, et al., Respondents.

Court of Appeals of the State of New York.Argued January 8, 1987
Decided January 20, 1987

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department.

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Frederick A.O. Schwarz, Jr., Corporation Counsel (Helen P. Brown and June A. Witterschein of counsel), for appellant.

Robert Abrams, Attorney-General (Charles C. Davis, Jr., O. Peter Sherwood and Howard L. Zwickel of counsel), for Herbert Altman, Justice of the New York County Supreme Court, Criminal Term, respondent.

Michele Maxian and Caesar D. Cirigliano for John Santana, respondent.

Anthony James, respondent, precluded.

MEMORANDUM.

The judgment of the Appellate Division dismissing the petition should be affirmed.

The extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction (Matter of Rush v Mordue, 68 N.Y.2d 348, 352; Matter of State of New York v King, 36 N.Y.2d 59, 62). Even in those rare circumstances where an arrogation of power would justify engaging the judicial process in collateral intervention and

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summary correction, the writ of prohibition does not issue as of right but only in the sound discretion of the court (Matter of Rush v Mordue, supra, at p 354; La Rocca v Lane, 37 N.Y.2d 575, 579). Plainly the court had jurisdiction to entertain the criminal actions before it and the authority to issue orders relating to the disposition of those actions. Prohibition is generally not available to collaterally review an arguable error of law committed in a pending criminal action (Matter of Gold v Gartenstein, 54 N.Y.2d 627; Matter of State of New York v King, supra) or to challenge an illegal sentence (see, People ex rel. Pritchard v Harris, 82 A.D.2d 842, lv denied 54 N.Y.2d 608). Our determination today should not be read as passing in any way upon the merits of petitioner’s contention that the court has acted improperly, for we merely hold that the extraordinary writ of prohibition is an inappropriate means to address the claimed error.

Nor is it appropriate in the procedural posture of this case to convert this special proceeding to a declaratory judgment action where the District Attorney’s office, an integral participant in the underlying criminal actions (see, e.g., CPL 220.10) and an entity with a significant interest in this proceeding, is not before the court (CPLR 103 [c]; cf. Matter of Morgenthau v Roberts, 65 N.Y.2d 749, 751; Matter of Morgenthau v Erlbaum, 59 N.Y.2d 143, cert denied 464 U.S. 993).

Chief Judge WACHTLER, and Judges SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur; Judge BELLACOSA taking no part.

Judgment affirmed, without costs, in a memorandum.