OPINION OF THE COURT
Kane, J.
Arrested on October 2, 1979, petitioner’s client was charged with resisting arrest, a class A misdemeanor (Penal Law, § 205.30), and with disorderly conduct, a violation (Penal Law, § 240.20, subd 1). He was arraigned in the Town Court of the Town of Mamakating, Sullivan County, but it does not appear that any plea was then entered or that any further proceedings have taken place in that court. Instead, petitioner moved before respondent Louis B. Scheinman, a Judge of the County Court of Sullivan County, to have the charges against him prosecuted by indictment and to have respondent Joseph Jaffe, the Sullivan County District Attorney, present the matter to a Grand Jury for that purpose. His application was denied by decision and order dated November 19, 1979, and petitioner thereafter commenced the instant article 78 proceeding, in the nature of mandamus, to obtain the same relief.
Petitioner’s motion was based on CPL 170.25 (subd 1) which provides, in relevant part, that "a superior court having jurisdiction to prosecute such misdemeanor charge by indictment may, upon [a] * * * showing [of] good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment”. Petitioner maintained that since neither of the present Justices of the Town Court of the Town of Mamakating is admitted to practice law, considerations of due process required that the charges pending against him be so removed for action by a Grand Jury in light of North v Russell (427 US 328) and People v Skrynski (42 NY2d 218). Of course, if it returned an indictment, all subsequent proceedings would take place in the Supreme Court or the County Court of Sullivan County before a judicial officer admitted to practice law (see NY Const, art VI, § 20, subd a; CPL 10.10, subd 2; 200.10, 230.10). Respondent determined that petitioner had not advanced one of the grounds traditionally necessary to support removal to a superior court and treated his application as a claim that the Justices of the particular local criminal court were disqualified. CPL 170.15 (subd 3, par [a]) recites that "a judge of the county court of the county in which such * * * town court * * * is located may * * * order that the action be transferred for disposition from [such town] court * * * to another designated [town] court of [413]*413the county, upon the ground that disposition thereof within a reasonable time in the court from which removal is sought is unlikely owing to: (a) Death, disability or other incapacity or disqualification of all the judges of such court”. Accordingly, after noting that some of the Town Courts in Sullivan County are presided over by jurists admitted to legal practice, petitioner’s motion was denied without prejudice to an application under that provision.
Petitioner’s contention is repeated in this proceeding; namely, that he has an absolute due process right to have the pending criminal matter heard by a jurist admitted to practice law, especially when, as here, a conviction of either offense could lead to a sentence of imprisonment (cf. Penal Law, § 70.15, subds 1, 4). Since none of the Justices of the Town Court of the Town of Mamakating are so admitted, his argument continues, it follows that respondent was constitutionally obliged to grant his motion. The statutory alternative mentioned by respondent is discounted as being inapplicable in this factual setting, and petitioner concludes, therefore, that relief in the form of mandamus should issue to compel respondents Scheinman and Jaffe to act in the only manner open to them to prevent an infringement of his constitutional rights.
In our opinion, the petition should be dismissed. It is well settled that constitutional issues will not be decided if the litigation can be resolved on some other ground (e.g., Comiskey v Arlen, 43 NY2d 696; Matter of Peters v New York City Housing Auth., 307 NY 519, 527-528). Here, there are two separate reasons for declining to reach the merits of petitioner’s constitutional argument.
In context of judicial activity, mandamus will lie to compel the performance of a purely ministerial act (e.g., Matter of Briggs v Lauman, 21 AD2d 734 [to determine a motion]), but it is not available to direct the outcome of a matter committed to the judgment or discretion of a court, and this holds true even when the underlying dispute involves questions of constitutional dimension (cf. Matter of Burton v Marshall, 20 NY2d 797; Matter of Saunders v Lupiano, 30 AD2d 803). Assuming the dictates of due process were enough to convert the plainly discretionary meaning of "may” in CPL 170.25 (subd 1) into a legal "shall”, the instant proceeding could not be maintained because it is fairly possible to interpret CPL 170.15 (subd 3, par [a]) in a fashion that would avoid resort to the former [414]*414provision. The disposition of certain accusations in a local criminal court could not be expected to occur in a reasonable period of time if all the incumbent Justices thereof suffered from a constitutional "incapacity”. We do not necessarily adopt this construction, but the possibility of an intra-county transfer of a pending criminal charge would be sufficient justification to deny mandatory removal to the Grand Jury. In other words, were we to reach and accept the constitutional proposition offered by petitioner, we would nevertheless dismiss his petition since the choice of appropriate relief between those options would remain a matter committed to respondent’s judgment.
Secondly, neither the Supreme Court nor the Court of Appeals has directly held that the presence of a jurist admitted to practice law is a minimal ingredient of due process in the disposition of petty offenses. The question was discussed in North v Russell (427 US 328, 334, supra) but no definitive answer was given because the Kentucky system involved in that case allowed for a trial de novo before a lawyer Judge in all cases. Similarly, while its observation may have been prompted by the roughly analogous removal procedure contained in CPL 170.25 (subd 1), the Court of Appeals later found "no evident Federal infirmity in the New York State system of town and village courts with lay justices” (People v Skrynski, 42 NY2d 218, 221, supra). In jurisdictions which have decided the issue the results have been mixed (e.g., People v Sabri, 47 Ill App 3d 962; Gordon v Justice Ct., 12 Cal 3d 323) and courts of this State have expressed differing views on the subject (cf. Matter of Simpson v Swartwood, 69 AD2d 954; People v Dean, 96 Misc 2d 781; People v Jones, NYLJ, July 5, 1977, p 14, col 1). Consequently, although petitioner’s contention is not without substance, he is unable to cite any binding judicial precedent or established line of authority in support of his position. At most, the issue is a debatable one and since mandamus, like prohibition, will lie only when the right to that form of relief has been clearly shown (see Matter of State of New York v King, 36 NY2d 59, 62), we should dismiss the instant petition without addressing the merits. However, inasmuch as the dissent rejects these procedural barriers and concludes that due process would be offended unless petitioner’s charges are heard by a Judge admitted to legal practice, some additional comments are warranted.
Petitioner does not question the individual competence or [415]*415impartiality of the Mamakating Town Court Justices.
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OPINION OF THE COURT
Kane, J.
Arrested on October 2, 1979, petitioner’s client was charged with resisting arrest, a class A misdemeanor (Penal Law, § 205.30), and with disorderly conduct, a violation (Penal Law, § 240.20, subd 1). He was arraigned in the Town Court of the Town of Mamakating, Sullivan County, but it does not appear that any plea was then entered or that any further proceedings have taken place in that court. Instead, petitioner moved before respondent Louis B. Scheinman, a Judge of the County Court of Sullivan County, to have the charges against him prosecuted by indictment and to have respondent Joseph Jaffe, the Sullivan County District Attorney, present the matter to a Grand Jury for that purpose. His application was denied by decision and order dated November 19, 1979, and petitioner thereafter commenced the instant article 78 proceeding, in the nature of mandamus, to obtain the same relief.
Petitioner’s motion was based on CPL 170.25 (subd 1) which provides, in relevant part, that "a superior court having jurisdiction to prosecute such misdemeanor charge by indictment may, upon [a] * * * showing [of] good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment”. Petitioner maintained that since neither of the present Justices of the Town Court of the Town of Mamakating is admitted to practice law, considerations of due process required that the charges pending against him be so removed for action by a Grand Jury in light of North v Russell (427 US 328) and People v Skrynski (42 NY2d 218). Of course, if it returned an indictment, all subsequent proceedings would take place in the Supreme Court or the County Court of Sullivan County before a judicial officer admitted to practice law (see NY Const, art VI, § 20, subd a; CPL 10.10, subd 2; 200.10, 230.10). Respondent determined that petitioner had not advanced one of the grounds traditionally necessary to support removal to a superior court and treated his application as a claim that the Justices of the particular local criminal court were disqualified. CPL 170.15 (subd 3, par [a]) recites that "a judge of the county court of the county in which such * * * town court * * * is located may * * * order that the action be transferred for disposition from [such town] court * * * to another designated [town] court of [413]*413the county, upon the ground that disposition thereof within a reasonable time in the court from which removal is sought is unlikely owing to: (a) Death, disability or other incapacity or disqualification of all the judges of such court”. Accordingly, after noting that some of the Town Courts in Sullivan County are presided over by jurists admitted to legal practice, petitioner’s motion was denied without prejudice to an application under that provision.
Petitioner’s contention is repeated in this proceeding; namely, that he has an absolute due process right to have the pending criminal matter heard by a jurist admitted to practice law, especially when, as here, a conviction of either offense could lead to a sentence of imprisonment (cf. Penal Law, § 70.15, subds 1, 4). Since none of the Justices of the Town Court of the Town of Mamakating are so admitted, his argument continues, it follows that respondent was constitutionally obliged to grant his motion. The statutory alternative mentioned by respondent is discounted as being inapplicable in this factual setting, and petitioner concludes, therefore, that relief in the form of mandamus should issue to compel respondents Scheinman and Jaffe to act in the only manner open to them to prevent an infringement of his constitutional rights.
In our opinion, the petition should be dismissed. It is well settled that constitutional issues will not be decided if the litigation can be resolved on some other ground (e.g., Comiskey v Arlen, 43 NY2d 696; Matter of Peters v New York City Housing Auth., 307 NY 519, 527-528). Here, there are two separate reasons for declining to reach the merits of petitioner’s constitutional argument.
In context of judicial activity, mandamus will lie to compel the performance of a purely ministerial act (e.g., Matter of Briggs v Lauman, 21 AD2d 734 [to determine a motion]), but it is not available to direct the outcome of a matter committed to the judgment or discretion of a court, and this holds true even when the underlying dispute involves questions of constitutional dimension (cf. Matter of Burton v Marshall, 20 NY2d 797; Matter of Saunders v Lupiano, 30 AD2d 803). Assuming the dictates of due process were enough to convert the plainly discretionary meaning of "may” in CPL 170.25 (subd 1) into a legal "shall”, the instant proceeding could not be maintained because it is fairly possible to interpret CPL 170.15 (subd 3, par [a]) in a fashion that would avoid resort to the former [414]*414provision. The disposition of certain accusations in a local criminal court could not be expected to occur in a reasonable period of time if all the incumbent Justices thereof suffered from a constitutional "incapacity”. We do not necessarily adopt this construction, but the possibility of an intra-county transfer of a pending criminal charge would be sufficient justification to deny mandatory removal to the Grand Jury. In other words, were we to reach and accept the constitutional proposition offered by petitioner, we would nevertheless dismiss his petition since the choice of appropriate relief between those options would remain a matter committed to respondent’s judgment.
Secondly, neither the Supreme Court nor the Court of Appeals has directly held that the presence of a jurist admitted to practice law is a minimal ingredient of due process in the disposition of petty offenses. The question was discussed in North v Russell (427 US 328, 334, supra) but no definitive answer was given because the Kentucky system involved in that case allowed for a trial de novo before a lawyer Judge in all cases. Similarly, while its observation may have been prompted by the roughly analogous removal procedure contained in CPL 170.25 (subd 1), the Court of Appeals later found "no evident Federal infirmity in the New York State system of town and village courts with lay justices” (People v Skrynski, 42 NY2d 218, 221, supra). In jurisdictions which have decided the issue the results have been mixed (e.g., People v Sabri, 47 Ill App 3d 962; Gordon v Justice Ct., 12 Cal 3d 323) and courts of this State have expressed differing views on the subject (cf. Matter of Simpson v Swartwood, 69 AD2d 954; People v Dean, 96 Misc 2d 781; People v Jones, NYLJ, July 5, 1977, p 14, col 1). Consequently, although petitioner’s contention is not without substance, he is unable to cite any binding judicial precedent or established line of authority in support of his position. At most, the issue is a debatable one and since mandamus, like prohibition, will lie only when the right to that form of relief has been clearly shown (see Matter of State of New York v King, 36 NY2d 59, 62), we should dismiss the instant petition without addressing the merits. However, inasmuch as the dissent rejects these procedural barriers and concludes that due process would be offended unless petitioner’s charges are heard by a Judge admitted to legal practice, some additional comments are warranted.
Petitioner does not question the individual competence or [415]*415impartiality of the Mamakating Town Court Justices. His premise is that a fundamentally fair disposition of minor criminal offenses cannot occur anywhere in New York if the charges involve potential incarceration on conviction and the proceedings take place before a lay Justice. Moreover, in urging that we accept this broad assertion, petitioner does so without submitting any factual information whatever. If proceedings before lay Justices are inherently less fair than those which take place before Judges admitted to legal practice, it would not seem too much to ask that some evidence be offered in support of that proposition. Not only has petitioner failed to prove this claim, he has not called any authority to our attention which even remotely suggests that an empirical comparison between attorney and lay Justices would yield results favorable to his position. In addition, we have been unable to discover any materials which contrast the judicial performance of those admitted to practice law with the performance of lay Justices who have completed the legal training required of them (see Uniform Justice Ct Act, § 105). In short, petitioner’s hypothesis has not been established.
Nevertheless, since concepts of due process are not limited by scientific equation, consideration must also be given to other factors. The current system of lay Justices has existed in New York for over 200 years and there has been little constitutional or legislative activity in the direction of requiring them to be admitted to practice law. Neither has there been any detectable increase recently in the number of appeals taken from courts presided over by such Justices, and local criminal court judgments or orders have been reversed at a relatively stable rate. Mechanisms exist to have an incompetent Judge removed from office; to have a partial Judge disqualified from hearing a given case; to transfer a particularly difficult matter to another court and to correct errors committed by the Trial Justice (Judiciary Law, §§ 42, 44; CPL 170.15, 170.20, 170.25, 450.10, 450.60, subd 3). While there is undoubtedly room for improvement, the current system does provide for a fair trial before a fair tribunal and more the Constitution does not require. Admission to legal practice does not necessarily guarantee competence or fairness (see North v Russell, 427 US 328, 337, supra), and if it were assumed that greater over-all justice would be done by insisting on that qualification for all New York Judges, the change is plainly one for the people or their elected representatives to effect.
[416]*416The petition should be dismissed, without costs.