Petitioner, the District Attorney of New York County, appeals from a judgment of the Supreme Court, New York County (Richard W. Wallach, J.), which dismissed an application pursuant to CPLR article 78 seeking to compel respondent, the Honorable Jay Gold, a Judge of the Criminal Court of the City of New York, to restore certain criminal matters to the Active Calendar. It is petitioner’s contention that the decision by the Court of Appeals in People v Douglass (60 NY2d 194) mandates that the court reactivate those prosecutions to which the People answer ready regardless of whether or not the District Attorney is, in fact, prepared for a dispositional conference or to proceed to trial. Respondent had refused petitioner’s request to move the cases in question from the Reserve to the Active Calendar on the ground that despite answering ready, the District Attorney was not actually in a position to take any action, which required court attention, in connection with these cases. According to respondent, certain essential police reports and other documents were still lacking. Instead of simply preparing the outstanding material, however, petitioner commenced the instant proceeding.
At the outset, it should be stated that mandamus is an extraordinary remedy which is available to compel the performance of a purely ministerial act only where there is a clear legal right to the relief sought. (Klostermann v Cuomo, 61 NY2d 525; Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12.) An article 78 proceeding is not appropriate to review an error alleged to have occurred in a criminal action. (Matter of Hennessy v Gorman, 58 NY2d 806; Matter of Mulvaney v Dubin, 55 NY2d 668.) Nor can it be utilized as a means to compel the court in a criminal matter to render a determination on the merits of a defendant’s timely filed motion. (Matter of Veloz v Rothwax, 65 NY2d 902.) Moreover, while mandamus may be resorted to where a public official fails to perform a duty imposed upon him or her by law, CPLR 105 (o) defines the word "law” as "any statute or any civil practice rule.” Yet, petitioner appears to urge that a court may be required by means of mandamus to perform duties imposed not only by *394statute but by common law and, in this instance, not even by clear mandatory common law. Rather, petitioner would elevate mere dictum contained in People v Douglass (supra) to the status of duty enjoined upon by law. None of the authority cited by petitioner supports the use of mandamus to achieve such a result.
In People v Douglass (supra), the Court of Appeals held that Judges do not possess inherent power to dismiss sua sponte a criminal prosecution for any reason, whether for failure to prosecute or calendar control, except as authorized by statutory or constitutional speedy trial rules. The court, in its opinion, noted (p 200): "that trial courts are vested with substantial power to control their calendars and our opinion today should not be read as holding, for example, that a court is obligated to grant every adjournment requested by a prosecutor simply because statutory or constitutional time limitations have not expired. Indeed, to so hold would not only place unnecessary burdens on the defendant and his attorney who would have to make unnecessary appearances, but would also be wasteful of judicial resources and would contribute to calendar congestion at a time when the volume of matters legitimately on the court calendars threatens to impair the proper administration of criminal justice. A system of open or reserved dockets is an example of how cases of unwarranted delay in prosecution can be dealt with properly. The cases are marked off the active calendar, subject to the right of the prosecutor upon oral application to have a case restored after filing the document, the absence of which led to the case being placed on the reserve calendar, or in other situations, after becoming ready to proceed, and so informing the court and the defendant.”
Petitioner asserts, and the majority agree, that the foregoing language establishes the prosecutor’s right to have cases placed on the Active Calendar once the original reason for removal no longer exists. Therefore, it is urged, upon request of the People, the court must restore those cases, and the act of doing so is a simple ministerial function. Petitioner largely rests its argument on the fact that in the initial draft of its opinion in People v Douglass (supra), the Court of Appeals permitted the District Attorney "to apply for leave to restore” a case which had been put on the Reserve Calendar, which phrase was removed from the official version. Although the court had denied the People’s motion to amend its opinion by deleting the aforementioned words, it sua sponte effected the *395change as indicated. Based upon such a slender thread, petitioner would transform mere dictum into a legally binding precedent, and this notwithstanding the long tradition supporting the inherent power of a trial court to control its own calendar. Indeed, in People v Douglass (supra), the Court of Appeals made reference to this "substantial” authority (p 200; see also, Cohn v Borchard Affiliations, 25 NY2d 237, 249-250).
The decision in People v Douglass (60 NY2d 194, supra) in no way limits the historical power which a trial court has over the management of its own calendar. While expressly recognizing the power of a trial court to control its calendars, including the right to implement a Reserve Calendar system, the Court of Appeals determined that this power does not give the trial court the authority to sua sponte dismiss the cases with which the prosecutor is not prepared to proceed. In that regard, the ruling in People v Douglass (supra) involved a thorough analysis of the legislative background surrounding dismissals of criminal actions. Yet, petitioner would go far beyond the actual holding of the Court of Appeals in order to strip Trial Judges of the discretion to maintain cases on the Reserve Calendar even where, in their estimation, the People are not ready to proceed with these matters. Petitioner, moreover, does not contend that respondent did not have the authority to assign the cases at issue herein to the Reserve Calendar. He does not claim that respondent had no right to direct his office to take particular steps to prepare the cases for trial. In fact, his only complaint is that pursuant to People v Douglass (supra), respondent was obliged to restore these matters to the Active Calendar upon request of the prosecutor even though they were not actually adequately ready for trial.
Under the scenario devised by petitioner, respondent was mandated first to restore the cases to the Active Calendar. Thereafter, he would have to order the District Attorney to take additional measures to ready each case for trial and grant adjournments in order to enable the People to complete their preparations. However, if the prosecution created unwarranted delay in doing so, then and only then respondent could presumably remove the cases from the Active Calendar and put them back on the Reserve Calendar. The difficulty with such a sequence of events, is, of course, that it not only would be unduly wasteful of the time and resources of both the court and the defense, but it could result in the prosecutor’s having effective control over the court’s calendar. Accordingly, the District Attorney would now be in a position to compel the *396placement of criminal matters on the Active Calendar even where these cases are not nearly ready for a dispositional conference or trial. Thus, the primary purpose of maintaining an Active and Reserve Calendar system would be undermined, a situation clearly not sanctioned or proposed by the Court of Appeals in People v Douglass (supra).
Any reasonable evaluation of petitioner’s claims in the instant appeal reveals that his real quarrel with respondent is that the latter is too quick to place a case on the Reserve Calendar and too slow to restore such matter to the Active Calendar. However, that is a product of the manner in which a particular Trial Judge exercises his discretion, not of his right to exercise it. Further, the fact that certain cases have been removed to the Reserve Calendar does not preclude the People from taking any action which they deem appropriate with regard to those matters. The District Attorney is in no way prohibited from making any applications, statements or arguments in open court and on the record—for instance, demonstrating and announcing readiness. In short, the capacity of the People to proceed with their prosecutions is in no way hampered. The District Attorney also appears to complain that unless cases are restored to the Active Calendar, dispositional conferences cannot be held. However, a Judge cannot be forced to plea bargain regardless of whether cases are on or off the Active Calendar. Certainly, the court cannot prevent a plea to the charges provided sentencing remains within the Judge’s discretion and is not part of a bargain.
If the District Attorney believes that the court has attached excessive demands to the restoration of a case to the Active Calendar, the People’s remedy is to answer ready for trial, make an appropriate record and then appeal should a dismissal ensue. Since a prosecutor may not dictate a Judge’s use of discretion by means of a mandamus proceeding, the judgment of the Supreme Court should be affirmed.
Sullivan and Rosenberger, JJ., concur with Murphy, P. J.; Fein and Milonas,. JJ., dissent in an opinion by Milonas, J.
Judgment, Supreme Court, New York County, entered on February 13, 1985, reversed, on the law, and the petition is granted, without costs and without disbursements.