MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, and the petition dismissed. It was error for Supreme Court to have entertained the application for article 78 relief in the nature of prohibition since that extra-ordinary remedy may ordinarily be employed only when a court acts or threatens to act "without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (Matter of State of New York v King, 36 N.Y.2d 59, 62). Our determination today should not be read as an approval of respondent's conclusion that CPL 340.40 (subd 7) is unconstitutional, for we merely hold that the extraordinary writ of prohibition is an inappropriate means to address the claimed error in the ruling at Criminal Court in this instance.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order reversed, etc.