MATTER OF JOHNSON v. TORRES

The People have the right to compel a defendant in a criminal case to be present in court for the purpose of an in-court identification. ( People v. Winship, 309 N.Y. 311, 313-314; see also, People v. Scarola, 71 N.Y.2d 769, 779.) The respondent Justice's order to petitioner, the District Attorney, compelling petitioner to provide "fillers" for a lineup to be conducted during the trial of Santos Alvarez was without foundation in law.

However, it is clear that article 78 prohibition and mandamus are available only when there is an "unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action of proceeding" ( Matter of State of New York v. King, 36 N.Y.2d 59, 64). An article 78 proceeding is simply unavailable to correct a trial error of substantive law or procedure, however grievous it may be. ( La Rocca v. Lane, 37 N.Y.2d 575, 579, cert denied 424 U.S. 968; Matter of Veloz v. Rothwax, 65 N.Y.2d 902; Matter of Mulvaney v. Dubin, 55 N.Y.2d 668.)

Concur — Sullivan, J. P., Rosenberger, Rubin, Saxe and Buckley, JJ.