Wroblewski v. Ricotta , 359 N.Y.S.2d 130 ( 1974 )

Per Curiam.

On June 6,1974 petitioners Wroblewski, Halicki and Banko were indicted by an Brie County Grand Jury which was empaneled in October, 1973. On June 7 and 14 respectively petitioners entered pleas of not guilty. On June 27, 1974 Special Term, Supreme Court, Erie County, in another case held that the pre-January 1, 1974 jury pool in Erie County was illegally and impermissibly constituted because of selective procedures which intentionally discriminated against women and students (People v. Attica. Bros., 79 Misc 2d 492). Petitioners timely moved for an order dismissing the indictment against them upon the ground the Grand Jury proceeding was defective under CPL 210.35 and their motion was denied.

Petitioners here seek an order of prohibition against the Trial Justice and District Attorney on the ground that the indictment against them is a nullity and that the court is without jurisdiction. An article 78 proceeding is not a proper remedy to review the .Special Term determination in this instance (CPLR 7801; Matter of Attica Bros. v. Additional Special and Trial Term of Supreme Ct., 45 A D 2d 10; Matter of Russell v. County Ct. of Chemung County, 40 A D 2d 615; Matter of Ward v. McQuillan, 40 A D 2d 974).

The proceeding should be dismissed.

Marsh, P. J., Moule, Simons, Mahoney and Del Vecchio, JJ., concur.

Application unanimously denied and petition dismissed, without costs.