Molea v. Marasco

102 A.D.2d 1022, 482 N.Y.S.2d 427, 1984 N.Y. App. Div. LEXIS 19248

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1984
• Status: Published

Opinion

Proceeding, pursuant to CPLR article 78 to prohibit the respondent Judges from enforcing a certain order of respondent Judge Marasco, dated April 16, 1984 on ground that it was in excess of his jurisdiction, in staying the further proceedings by the petitioner, District Attorney, and ordering the Town Court of Mount Pleasant to conduct a preliminary hearing on defendant-respondent Kevin Magee’s motion to dismiss the indictment for its granting of the said defendant’s motion to waive his presence at a preliminary hearing. ¶ Motion by respondent Kevin Magee to dismiss the proceeding on the ground that the petition fails to stay a cause of action denied. ¶ Application granted; the respondents Judges of the Town Court of the Town of Mount Pleasant are enjoined from conducting the hearing contemplated in the order of respondent Marasco, J. ¶ We further find that the direction in the order dated April 16, 1984 exceeded the jurisdiction of the County Court, and the motion to dismiss the indictment on the grounds stated were not sufficient in law to warrant the dismissal of the indictment. ¶ The motion to dismiss should be denied and the County Court should proceed with the trial of the indictment. Mollen, P. J., Titone, Lazer and Thompson, JJ., concur.