Cambria v. Adams

May 11, 1990
Versions:161 A.D.2d 1180
555 N.Y.S.2d 522
1990 N.Y. App. Div. LEXIS 9194

Petition unanimously dismissed without costs. Memorandum: Petitioners seek a writ of prohibition disqualifying respondent Judge Adams from presiding over a criminal proceeding against petitioners Anthony and Joseph Liuzzo and others. They contend that he acted improperly in his supervision of the Grand Jury proceedings and that, when they subsequently bring a motion to dismiss the indictment based on defective proceedings, Judge Adams will be a witness and attempt to demonstrate that his conduct was proper. Petitioners assert that this renders Judge Adams "interested” within the meaning of Judiciary Law § 14.

The extraordinary remedy of prohibition is not available as a remedy to correct errors of law in litigation and lies only where there is a clear legal right and the court acts without jurisdiction or in excess of its jurisdiction (see, Matter of Rush v Mordue, 68 NY2d 348, 352; Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597). Petitioners’ contention that the Grand Jury proceedings were defective, an issue that can be raised on direct appeal from the judgment, does not constitute a claim that the court acted without or in excess of jurisdiction. There is no merit to petitioners’ contention that Judge Adams is "interested” within the meaning of Judiciary Law § 14 (see, Matter of Sherburne, 124 Misc 2d 708, 710; People v Capuano, 68 Misc 2d 481).

*1181Petitioners also seek a writ of prohibition reinstating petitioner Cambria as counsel for petitioners Anthony and Joseph Liuzzo. A writ of prohibition does not lie to review an attorney’s disqualification (see, Matter of Kavanagh v Vogt, 58 NY2d 678) and the petition must be dismissed in this respect. Although a civil appeal would lie (see, Matter of Abrams [Anonymous], 62 NY2d 183, 194), none is before us. (Original art 78.) Present—Denman, J. P., Pine, Balio, Lawton and Lowery, JJ.