
    In the Matter of The Legal Aid Society of Sullivan County, Inc., Appellant, v Louis B. Scheinman, as County Court Judge, County of Sullivan, State of New York, et al., Respondents.
    Argued February 11, 1981;
    decided May 12, 1981
    
      POINTS OF COUNSEL
    
      Carl J. Silverstein and Gary Waldman for appellant.
    A criminal defendant charged with an offense subjecting him to possible confinement has an absolute right to divestiture under CPL 170.25 to assure him of his constitutional right to a trial by a court presided over by a lawyer-judge. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218; Matter of Simpson v Swartwood, 69 AD2d 954; People v Dean, 96 Misc 2d 781.)
    
      Joseph Jaffe, District Attorney (Philip E. Conaty of counsel), for respondents.
    I. The court below properly dismissed the petition for a writ in the nature of mandamus. (Matter of State of New York v King, 36 NY2d 59; Matter of Saunders v Lupiano, 30 AD2d 803; Matter of State of New York v Harvey, 55 AD2d 716; Matter of Burton v Marshall, 20 NY2d 797; Matter of Hewitt, 81 Misc 2d 202; People v Prisco, 68 Misc 2d 493; North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218.) II. CPL 170.25 permitting discretionary removal to a superior court does not violate a defendant’s due process rights. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218; Matter of Hewitt, 81 Misc 2d 202; People v Lovejoy, 66 Misc 2d 1003; People v Prisco, 68 Misc 2d 493; People v McAnarney, 28 Misc 2d 778; People v Rosenberg, 59 Misc 342; Simpson v Swartwood, 69 AD2d 954; Matter of Murchison, 349 US 133; Bartlett v Bedient, 47 AD2d 389.)
    
      Eugene W. Salisbury, Duncan S. Mac Affer and Frank S. Kedzielawa for New York State Association of Magistrates, amicus curiae.
    
    I. New York’s use of nonlawyer Town and Village Justices, authorized by the State Constitution, represents an acceptable balance of the competing interests. It comports with basic concepts of fairness and justice. Consequently, it is compatible with the due process clause of the Fourteenth Amendment to the United States Constitution. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218; Colten v Kentucky, 407 US 104; Cafeteria Workers v McElroy, 367 US 886; Hurtado v California, 110 US 516; Stein v New York, 346 US 156; Lyons v Oklahoma, 322 US 596; Lisenba v California, 314 US 219; Weeks v United States, 232 US 383.) II. Similar claims of due process denial have been judicially rejected by our sister States. (Matter of Storace, 30 AD2d 220; California v Gordon, 420 US 938; Landes v Town of North Hempstead, 20 NY2d 417; Argersinger v Hamlin, 407 US 25; Jackman v Rosenbaum Co., 260 US 22; New State Ice Co. v Liebman, 285 US 262.) III. Education in a New York law school and admission to the New York Bar offer less assurance of judicial competence in local criminal proceedings than participation in New York’s Magistrates training program.
    
      Rene H. Reixach for Greater Upstate Law Project, amicus curiae.
    
    An absolute right to choose trial before a lawyer-judge is required by due process where a defendant is subject to incarceration upon conviction. (North v Russell, 427 US 328; Argersinger v Hamlin, 407 US 25.)
    
      Edward C. Cosgrove and Ernest G. Anstey for District Attorney’s Association of the State of New York, amicus curiae.
    
    CPL 170.25 does not require the absolute right to divestiture by a superior court of charges pending before a local criminal court solely because the Justices of such local criminal court are not lawyers. (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218.)
   OPINION OF THE COURT

Jones, J.

Relief under CPLR article 78 in the nature of mandamus does not lie to compel the removal by a superior court of charges pending in a local criminal court in order to assure a defendant trial before a lawyer-trained Judge.

By informations lodged against him in the Town of Mamakating Justice Court in Sullivan County, one John Housman stands charged with disorderly conduct and resisting arrest. Neither charge has yet been prosecuted. Shortly after being arraigned on those charges, however, Housman’s assigned counsel, petitioner Legal Aid Society of Sullivan County, on his behalf moved before Louis B. Scheinman, a Judge of the County of Sullivan County, to have the charges against him prosecuted by indictment and to have the matter presented to the Grand Jury. That motion was based on CPL 170.25 (subd 1) which provides in part that “a superior court having jurisdiction to prosecute such misdemeanor charge by indictment may, upon [a] * * * showing good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment”. Housman contended that, because none of the Justices of the local criminal court in the Town of Mamakating were admitted to practice law, he had a constitutional right to have his case removed to a court which would afford him a trial presided over by a Judge who was a lawyer. When that application was denied, the Legal Aid Society in its own name instituted the present article 78 proceeding in the Appellate Division for a writ in the nature of mandamus to compel Judge Scheinman to grant the relief Housman had sought under CPL 170.25 (subd 1). The Appellate Division dismissed the petition. We now affirm.

At the threshold we note the questionable standing of the Legal Aid Society to institute the present proceeding. The only party directly affected is the client, whose interests may be said to be placed in jeopardy under the statutory provisions. The Legal Aid Society in effect seeks an advisory declaratory opinion on the basis of which it may formulate the advice to be given to its client. No authority is cited to warrant judicial entertainment of any such application. Inasmuch, however, as this issue is not raised by respondent we are hesitant to predicate a disposition of the present appeal on this ground. It is assumed, therefore, without deciding, that the present proceeding is not to be dismissed for lack of standing on the part of the Legal Aid Society.

We turn then to the question of the availability of article 78 relief in the present circumstances. Mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief" sought. That is not the case in this instance. Additionally, to hold, as would the dissenter, that mandamus would lie in the present case would be to project the court into the very practice all courts seeks assiduously to avoid — the making of pronouncements with respect to constitutional issues whose resolution is not necessary to the disposition of the case before the court. The circumstance that we honor this jurisprudential principle warrants no inference, of course, as to how we would resolve the constitutional issue if it were to be addressed.

More significant and controlling is the fact that mandamus like prohibition is an extraordinary remedy, and we have consistently held that such remedies do not lie for interlocutory relief which operates to disrupt the normal progress of a pending criminal action. It is well settled that mandamus is not available to remedy or prevent trial errors. Sound principles of judicial administration require that their correction be left to the normal avenues of appellate review.

The denial of article 78 relief here is mandated by our decision in Matter of State of New York v King (36 NY2d 59, 62-65) in which then Chief Judge Breitel wrote for a unanimous court:

“The courts may not entertain a collateral proceeding to review an error of law in a pending criminal action, however egregious and however unreviewable, by way of immediate appeal or by appeal after the final judgment of conviction or acquittal, whichever may eventuate.

* * *

“Were allowance of this kind of proceeding to become a precedent, one would have to anticipate innumerable proceedings in all sorts of criminal matters to review allegedly prejudicial errors of law for which there would be no eventual appellate review or only appellate review after final judgments, and then only of conviction. No trial can be conducted while appellate courts by their own protracted proceedings review the alleged errors which may arise preliminary to the trial, during the trial, and before verdict and judgment. Such a system is neither civilized nor even rational. And most certainly it would make speedy trial a legal impossibility.

* * *

“Were the court to conclude otherwise than to reject this unsound and novel extension of the extraordinary ancient remedies of prohibition and mandamus, it might be a credit to man’s ingenuity but a disabling discredit to the jurisprudence.”

In King, of course, we confronted an issue as to which it was recognized that the People could never seek judicial review by way of appeal; nonetheless relief under article 78 was denied. By contrast, in the present case, Housman can obtain full judicial review of his claim (that he was deprived of his constitutional rights when the County Judge rejected his application for removal) on direct appeal from any judgment of conviction against him. Where that alternative is present, to encumber criminal proceedings with collateral, interlocutory actions, disruptive of the normal progress of pending charges, is impermissible.

Accordingly, for the reasons stated, the judgment of the Appellate Division dismissing the petition should be affirmed, without costs.

Fuchsberg, J.

(dissenting). Is it unconstitutional for a defendant charged with a crime, conviction for which could bring imprisonment, to be compelled to have his case tried before a Judge who is not a lawyer? That is the real issue in this case.

As I see it, the majority’s decision, purportedly based on procedural grounds, despite its protestations to the contrary necessarily assumes its own resolution of the substantive constitutional question. The assumption is that a decision, whether to remove a case, pursuant to CPL 170.25, from a local criminal court presided over by a lay Justice to a “superior court” at which only lawyer-judges may preside, rests within the discretion of a “superior court” Judge.

Because the holding to which this premise leads the court today implicitly deprives the defendant of due process of law, such interpretation of the statute would render it unconstitutional. However, since it is possible to interpret CPL 170.25 to require removal to a “superior court” under these circumstances, that is how I believe the statute should be read.

My holding, of course, would make any denial of a CPL 170.25 motion subject to mandamus. For, while collateral proceedings in a criminal matter are disfavored (e.g., Matter of State of New York v King, 36 NY2d 59), it is elementary that, where a duty is merely ministerial, mandamus lies (see Artis v Keegan, 77 Misc 2d 638; Matter of Bernoff v Amoroso, 188 Misc 845, affd 271 App Div 925; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7801, C7801:9, p 38).

The constitutional question arises in the context of in-formations lodged against the defendant in the Town Court of Mamakating, Sullivan County, for disorderly conduct, a violation (Penal Law, § 240.20), and resisting arrest, a misdemeanor (Penal Law, § 205.30). Conviction of either could bring imprisonment (see New York Sentence Charts, Chart III). Promptly after his arraignment before one of that court’s two Justices, neither of whom is a lawyer, the defendant brought on a CPL 170.25 (subd 1) motion before the Sullivan County Court, which, as a “superior court having jurisdiction to prosecute [a] misdemeanor charge by indictment * * * may, upon motion of the defendant * * * showing good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment and that the district attorney present it to the grand jury for that purpose”. A case so prosecuted, would, of course, effect a transfer before a lawyer-judge, since indictments in this State are not prosecutable before Town or Village Courts.

Except to express his dissatisfaction with the prospect of a trial presided over by a jurist who is not admitted to the practice of law, defendant, in support of his motion, as in all the ensuing proceedings in this matter, made no attempt to come within the “good cause”' requirement of the statute. Raising no specific issue as to, for instance, the complexity or simplicity of his case, his insistent position was, and continues to be, that the due process clause of the Fourteenth Amendment of the Federal Constitution automatically entitles him to a “lawyer-judge” on demand.

In turn, the People, vigorously opposing the view that New York’s provisions with regard to qualifications for the office of Town Court Justice suffer from any Federal constitutional deficiency, stressed defendant’s failure to demonstrate good cause. In particular, citing, among other cases, People v Rosenberg (59 Misc 342), it asserted that the case was not intricate, that it involved no difficult questions of law, that no property rights were at stake, that the decision in the case would be of no particular precedential consequence and that the case was not of an exceptional character. Essentially on this rationale, the County Court Judge rejected the application, but without prejudice to the defendant moving under CPL 170.15 (subd 3, par [a]) for a transfer to one of the other Sullivan County local criminal courts whose judicial personnel included Judges who were members of the Bar.

The defendant did not make the CPL 170.15 (subd 3, par [a]) motion. Instead, as indicated, the Legal Aid Society, on behalf of its client, initiated the present article 78 proceeding. It thereby petitioned for a writ in the nature of mandamus from ;the Appellate Division to compel the County Court Judge to grant the relief the defendant had demanded under CPL 170.25 (subd 1). The Appellate Division dismissed the petition by a sharply divided court on the procedural ground that mandamus does not lie. The dissenters, relying on intermediate court commentary on People v Skrynski (42 NY2d 218), would have held that non-lawyer-Judges are constitutionally acceptable “only on condition that a defendant charged with an offense subjecting him to confinement has a constitutional right to resort to the divestiture procedure of CPL 170.25”. (Matter of Legal Aid Soc. of Sullivan County, 73 AD2d 411, 416 [Casey, J., dissenting].)

A good way to start my analysis is with the two relatively recent cases in which, first the Supreme Court of the United States, and then this court, dealt with challenges to the utilization of lay Judges (North v Russell, 427 US 328; People v Skrynski, 42 NY2d 218, supra).

In North v Russell, the Supreme Court, while it discussed the issue in rather broad perspective, confined its ruling to the narrower question on which the case turned. There it was whether a defendant, who is “subject to possible imprisonment, is denied due process when tried before a nonlawyer police court judge with a later trial de novo available under [Kentucky’s] two-tier court system” (North v Russell, supra, at p 329). At the second tier, the Judge would have been a lawyer, but the defendant did not avail himself of the de novo privilege. Instead, he resolutely maintained that his rights were compromised irrevocably when he was forced to proceed to trial before a non-lawyer-Judge in the first instance.

In overruling this contention and validating the statutory scheme, it is significant that the court emphasized that a defendant’s right to trial de novo was “absolute”, “unconditional” and available “[i]n all instances” (North v Russell, supra, at pp 335, 334; emphasis added). The court did not hold, however, that the constitutional viability of trials conducted by lay Judges depended on the existence of a de novo backstop. Bather, that States are free to devise their own safeguards against inroads on due process is apparent from the fact that the court, recalling the “flexibility and leeway” left to the States under our Federal form of government, expressly cautioned against “converting desirable practice into constitutional commandment” (North v Russell, supra, at p 338, n 6, quoting Shadwick v City of Tampa, 407 US 345, 353-354). It did suggest, though, that, when the penalty of confinement looms, whatever the process is, it “commands scrutiny” (North v Russell, supra, at p 334).

It was in People v Skrynski that our court, not too long afterwards, indeed did scrutinize New York’s statutory scheme. Measuring it by what we took to be the Supreme Court’s determination that “so long as defendant has the effective alternative of a criminal trial before a court with a traditionally law-trained Judge”, we found “no evident Federal infirmity” (People v Skrynski, 42 NY2d 218, 221, supra). Specifically, and without elaboration, in our Per Curiam opinion, we held that CPU 170.25 prescribed such an “effective alternative”.

The present case now calls on us to enlarge on Skrynski. In fine, in deciding whether mandamus lies, we are asked whether the statute is an “effective alternative” because it is peremptory in its call for a judicial order of divestiture, or whether it fulfills that function despite the fact that the “superior court”, before which it may be invoked, is to pass judgmentally on whether the character of the case is such that a failure to effect a transfer to a lawyer-Judge could unduly risk a miscarriage of justice. As indicated earlier, I would hold it has to be the former.

Though cognizant of the general rule of statutory construction that “may” should be interpreted permissively, application of such a rule to this statute would render our lay judicial system unconstitutional. Therefore, in this case, we are guided by the principle favoring statutory construction concordant with constitutionality (see, e.g., People v Nieves, 36 NY2d 396, 400).

Specifically, were CPL 170.25 not to be read as mandating removal upon the request of a defendant subject to a term of imprisonment, inevitably some New York defendants would be tried, convicted and sentenced by Justices who were not lawyers. Such a result simply cannot be reconciled with the Supreme Court’s persistent recitation in North that in all cases the Kentucky de novo system provided a defendant, who so desired, with a trial before a lawyer-judge. In North v Russell, it was the defendant’s choice whether to forego a trial presided over by a lawyer-judge. Here, however, only if CPL 170.25 is read as peremptory— a motion which must be granted upon the request of the defendant — does the choice, as to whether a lay- or lawyer-justice shall preside, remain with the defendant.

That every defendant has recourse to the appellate process provides no succor to those who would contend that the statute may constitutionally be read as one permitting a “superior court” Judge discretion in deciding a CPL 170.25 motion. First, I note that section 2021 of the Uniform Justice Court Act does not require the use of a stenographer to record the proceedings, even if a defendant so requests (see Opn St Comp, 78-316, April 21, 1978). Obviously the effectiveness of appellate review decreases precipitously where there is no transcript which can be reviewed and analyzed to evaluate claims of error at nisi prius.

Further, appellate review by lawyer-judges is similarly not a substitute for an initial trial before a lawyer-judge. Even though CPL 470.15 grants an intermediate appellate court broad powers of review, the posture of a case at the appellate level sharply delimits the court’s power. “The rule is well settled that on the review of a conviction in a criminal case where there is any evidence of guilt, the question of reasonable doubt must be left to the jury or trial court, and the verdict or decision on the facts ordinarily must be deemed conclusive and will not be disturbed unless it is perfectly clear that it is against the weight of the evidence” (People v Atlas, 183 App Div 595, 600, affd 230 NY 629). It necessarily follows that the vaunted presumption of innocence simply cannot play a role at the appellate level (see People v Benzinger, 36 NY2d 29, 32).

Moreover, while the appeal is pending, a defendant may well be incarcerated as there is no constitutional right to bail after conviction (Matter of Gold v Shapiro, 45 NY2d 849, affg 62 AD2d 62,65). Again, the situation is in marked, and unfavorable, contrast to that of the one in Kentucky, where a defendant is entitled to bail while awaiting the de novo trial (North v Russell, supra, at p 335).

And, overall, without exhausting our toll of deleterious fair trial consequences at this point, aside from prejudice in fact, one cannot avoid consciousness of the appearance of unfairness that is almost sure to be sensed by a defendant who is jailed after being forced to trial before a Judge who is not a lawyer. For it “is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (Lord Hewart in Rex v Sussex Justices [1924], 1 KB 256, 259).

It is for all these reasons that I would reverse the judgment of the Appellate Division and grant the petition for mandamus.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Meyer concur with Judge Jones ; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

Judgment affirmed, without costs. 
      
      . The relief in the nature of mandamus here sought, a derivative of the common-law writ, is discrete from the more recently developed remedy of mandamus, also available under CPLR article 78, to review official administrative determinations involving the exercise of discretion for which no hearing conforming to due process requirements need be had (8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.04).
     
      
      . The inappropriateness of an article 78 proceeding is further illustrated by the facts of this case. Housman was arrested and charged with the relatively minor offenses of resisting arrest (a class A misdemeanor) and disorderly conduct (a violation) on October 2, 1979. His removal motion pursuant to GPL 170.25 (subd 1) was denied on November 19, 1979. In December, 1979 this proceeding was commenced at the Appellate Division, which rendered its decision April 15, 1980. During all this time the trial proceedings have remained in abeyance; many months have been needlessly exhausted in pursuance of article 78 relief.
     
      
      . In pertinent part, CPL 170.15 (subd 3, par [a] ) reads: “where a defendant is arraigned upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint pending in a city court, town court or a village court having trial jurisdiction thereof, a judge of the county court of the county in which such * * * court * * * is located may, upon motion of the defendant or the people, order that the action be transferred for disposition from the court in which the matter is pending to another designated local criminal court of the 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”.
     
      
      . (See, e.g., Matter of Simpson v Swartwood, 69 AD2d 954 [concurring opn of Greenblott, J.] ; People v Dean, 96 Misc 2d 781.)
     