Finding that the plain language of the statute authorizing a trial order of dismissal "manifests the Legislature's intention only to grant the court the power to rule on insufficiency, not the power to terminate the proceedings by default"
In Matter of Rush v Mordue (68 NY2d 348, supra) and Matter of Brockway v Monroe (59 NY2d 179), the Court of Appeals recognized that prohibition would lie where the case involves a claim that a prosecution is improper because it is barred by immunity.
In Scheinman, because of the procedural posture of the case, we did not reach the issue of the constitutionality of trial before a lay Judge when a defendant facing incarceration requests, and is denied, removal under CPL 170.25. (Matter of Legal Aid Soc. v Scheinman, 53 N.Y.2d 12, 16, supra.)
In King, then-Chief Judge Breitel, writing for a unanimous Court, concluded that prohibition did not lie to preempt an egregious, prejudicial and unreviewable error of law involving a trial court grant of excessive peremptory challenges in a criminal action (id., at 61-62).
In Erlbaum, the Court of Appeals clearly stated that declaratory relief may not be sought by a criminal defendant for the purpose of “attacking a criminal court's interlocutory ruling” (Erlbaum, 59 N.Y.2d at 151–152, 464 N.Y.S.2d 392, 451 N.E.2d 150).
In Matter of Dondi v Jones (40 N.Y.2d 8, 13, supra), we recognized that prohibition would be an appropriate remedy if it were found that a Special Prosecutor was exceeding the authority conferred upon him through Executive Order by prosecuting a particular criminal defendant under an existing indictment.