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Matter of Johnson v. Torres

Appellate Division of the Supreme Court of New York, First Department
Mar 18, 1999
259 A.D.2d 370 (N.Y. App. Div. 1999)

Summary

holding writ of prohibition unavailable to correct trial error, but noting that “[t]he respondent Justice's order to petitioner, the District Attorney, compelling petitioner to provide fillers' for a lineup to be conducted during the trial ... was without foundation in law”

Summary of this case from People v. Sharp

Opinion

March 18, 1999

Petition pursuant to CPLR article 78 for a writ of prohibition to prohibit the Honorable Frank Torres from enforcing an order directing petitioner to conduct a lineup, during a trial, in the action entitled People v. Santos Alvarez, and for a writ of mandamus to direct the respondent Justice to compel respondent Santos Alvarez to appear in court for the purpose of in-court indentification, unanimously denied and the proceeding dismissed, without costs.


The People have the right to compel a defendant in a criminal case to be present in court for the purpose of an in-court identification. ( People v. Winship, 309 N.Y. 311, 313-314; see also, People v. Scarola, 71 N.Y.2d 769, 779.) The respondent Justice's order to petitioner, the District Attorney, compelling petitioner to provide "fillers" for a lineup to be conducted during the trial of Santos Alvarez was without foundation in law.

However, it is clear that article 78 prohibition and mandamus are available only when there is an "unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action of proceeding" ( Matter of State of New York v. King, 36 N.Y.2d 59, 64). An article 78 proceeding is simply unavailable to correct a trial error of substantive law or procedure, however grievous it may be. ( La Rocca v. Lane, 37 N.Y.2d 575, 579, cert denied 424 U.S. 968; Matter of Veloz v. Rothwax, 65 N.Y.2d 902; Matter of Mulvaney v. Dubin, 55 N.Y.2d 668.)

Concur — Sullivan, J. P., Rosenberger, Rubin, Saxe and Buckley, JJ.


Summaries of

Matter of Johnson v. Torres

Appellate Division of the Supreme Court of New York, First Department
Mar 18, 1999
259 A.D.2d 370 (N.Y. App. Div. 1999)

holding writ of prohibition unavailable to correct trial error, but noting that “[t]he respondent Justice's order to petitioner, the District Attorney, compelling petitioner to provide fillers' for a lineup to be conducted during the trial ... was without foundation in law”

Summary of this case from People v. Sharp
Case details for

Matter of Johnson v. Torres

Case Details

Full title:In the Matter of ROBERT T. JOHNSON, Petitioner, v. FRANK TORRES et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 18, 1999

Citations

259 A.D.2d 370 (N.Y. App. Div. 1999)
688 N.Y.S.2d 11

Citing Cases

People v. Sharp

the defendant's position in the courtroom is all too obvious, have asked the trial court for an order…

People v. Day

309 N.Y. at 314. The Winship principle is set out in Johnson v. Torres, 259 A.D.2d 370 (1st Dept. 1999), and…