Opinion
February 4, 1974
Proceeding pursuant to article 78 of the CPLR (1) to prohibit respondents from taking any action in a certain criminal case pending in Kings County against petitioner and (2) to dismiss the indictment. Proceeding dismissed on the merits, without costs. There is no merit to the claim that the Extraordinary Special Grand Jury of Kings County exceeded its jurisdiction in the criminal case in question, either with respect to the general subject matter of the indictment (see Executive Order No. 58, 9 NYCRR 1.58) or those specific counts alleging perjury before Mr. Justice Robert E. Dempsey in Westchester County (CPL 20.40, subd. 2, par. [c]). Nor is prosecution of the indictment barred by the doctrine of double jeopardy or collateral estoppel. The remaining claim for relief, to wit: that those counts charging perjury before "Counsel to the inquiry" in Kings County are defective, because said counsel was allegedly without authority to administer the oath or cause it to be administered, is not of a jurisdictional nature or of constitutional dimension. It is a matter of defense, to be raised upon the trial, involving questions of fact as well as law (see Penal Law, § 210.30), and, therefore, it is outside the ambit of the extraordinary remedy of prohibition ( Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 436-438, cert. den. 404 U.S. 823). Hopkins, Acting P.J., Latham, Christ, Brennan and Munder, JJ., concur.