(dissenting). The petitioner herein seeks to compel the respondent, the Sullivan County Judge, to remove the charges pending against the petitioner in the Town Court of the Town of Mamakating, to the Grand Jury pursuant to CPL 170.25, for the reason that neither Justice of that town is a lawyer. The majority has concluded that the mandamus sought to obtain this relief is inappropriate because: (1) the application did not allege a traditional removal ground under that section; (2) that the statute is not mandatory but discretionary by the statutory use of the word "may”; (3) that the provisions of CPL 170.15 provide an effective alternative for the relief sought since the petitioner could apply thereunder for a transfer of his pending charges to another Town Court of the same county, presided over by a lawyer Judge; (4) that the constitutional issue involved is at most debatable and, therefore, lacks a showing of a clear legal right to the relief sought, precluding the remedy of mandamus; and (5) that the current system of lay Justices has proven itself adequate for over 200 years in this State.
Prior to the decision of the Court of Appeals in People v Skrynski (42 NY2d 218) all of these arguments would be valid reasons for denying the petitioner the relief he seeks. Because of Skrynski, however, such considerations are, in our opinion, outmoded.
The only valid interpretation that can be accorded Skrynski is that the constitutionality of the New York State system of Town and Village Courts, when presided over by nonlawyer Judges, is preserved 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 to assure his trial by a court presided over by a lawyer Judge.
Skrynski has already been judicially so interpreted (see Simpson v Swartwood, 69 AD2d 954, concurring opn of Greenblott, J.; People v Dean, 96 Misc 2d 781). These authorities recognize the petitioner’s constitutional right to removal. Were this interpretation not intended, the Court of Appeals would simply have declared the constitutionality of the New *417York State system without mentioning the necessity of the escape hatch provided by CPL 170.25. That statute, having been enacted before Skrynski, obviously could not have anticipated and, therefore, did not expressly contain this reason as a basis for removal. What the Court of Appeals did, however, was to use the provisions of this statute (CPL 170.25) to compel removal mandatorily when a defendant circumstanced as the petitioner desires his trial before a lawyer Judge and thus preserve the constitutionality of the whole system of Town and Village Courts in New York State.
Prior to Skrynski such removal for traditional grounds may indeed have been discretionary. After Skrynski, however, when a defendant faces confinement and wishes to avail himself of his now declared constitutional right, his application made under CPL 170.25 must be granted.
The majority claims, as did the respondent Judge, that CPL 170.15 provides an effective alternative to CPL 170.25, and so the application here is discretionary inasmuch as the petitioner has the choice of either statute, and since mandamus is inappropriate to compel the exercise of a discretionary act, the petition must fail. Significantly and ironically, however, upon this finding of an additional effective remedy the relief demanded was, for that reason, in all respects denied. Having concluded that there were two effective statutes and that the existence of both made the relief sought discretionary under either, the respondent Judge would be effectively immunized from mandamus, leaving the petitioner without any remedy, for such an order denying removal being intermediate only is not appealable by the defendant under CPL 450.10.
Furthermore, by its very provisions, CPL 170.15 is inappropriate to accomplish the result sought, for that statute requires the defendant applicant to show "that disposition * * * [of his charges] 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 judges of such court” (CPL 170.15, subd 3, par [a]).
If the defendant fails to show that disposition of his charges within a reasonable time in the local court is unlikely, his application could be denied for that reason alone. Additionally, CPL 170.15 concerns the disqualification of Judges of the local courts and to impose disqualification for the reason that the local Judge is a nonlawyer flies in the face of the legisla*418tive power to prescribe the qualifications of Town and Village Justices (NY Const, art VI, § 20, subd c).
Also, if no law trained Judge presides over any Town or Village Court of a particular county then section 170.15 would certainly not be a proper alternative.
Finally, we also recognize the effective and efficient efforts exerted by so many Village and Town Justices for all the time that system has existed in New York State. Their competency and ability are not issues here. The only issue is how the Court of Appeals in Skrynski decided that New York’s present system of Town and Village Courts could be preserved in the light of the decision by the United States Supreme Court in North v Russell (427 US 328), and we are constrained by that decision in the context and factual pattern of the proceeding before us.
For these reasons, we believe that the application made under CPL 170.25 is required to be granted to insure the defendant the constitutional right to a trial by a law trained Judge, and that the petition herein in the nature of mandamus to compel removal from the Town Court must be granted.
Staley, Jr., J., concurs with Kane, J.; Mahoney, P. J., concurs in a separate opinion; Mikoll and Casey, JJ., dissent in an opinion by Casey, J.
Petition dismissed, without costs.