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Rodriguez v. LaValley

112 A.D.3d 1244 Court N.Y. App. Div. Decision date 2013-12-26 English

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In the Matter of Otes G. Rodriguez, Appellant, v Thomas LaValley, as Superintendent of Clinton Correctional Facility, Respondent.
[976 NYS2d 897]

Appeal from a judgment of the Supreme Court (Lawliss, J.), entered August 8, 2012 in Clinton County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging his underlying conviction. Supreme Court dismissed the petition, concluding that petitioner’s challenges were not properly raised in a CPLR article 78 proceeding. Inasmuch as “[a]n article 78 proceeding generally does not lie to review error claimed to have occurred in a criminal proceeding” (Matter of Hennessy v Gorman, 58 NY2d 806 , 807 [1983]; see Matter of Carpenter v Corcoran, 75 AD3d 1110 , 1111 [2010], lv denied 15 NY3d 712 [2010]), the proceeding was properly dismissed. Clearly, respondent has no authority to vacate the judgment of conviction (see Matter of Reed v Travis, 19 AD3d 829 , 830 [2005], lv denied 5 NY3d 708 [2005]), and such challenges must be made by directly appealing the judg

p. 1245
ment of conviction (see CPL 450.10 [1]; 450.60 [3]; 470.15 [1]; Matter of Carpenter v Corcoran, 75 AD3d at 1111 ). Here, petitioner had a full opportunity to challenge the judgment of conviction on direct appeal and was unsuccessful (People v Rodriguez, 32 AD3d 1203 [2006], lv denied 8 NY3d 849 [2007]), and “there is no ground upon which that judgment may be collaterally attacked by way of a proceeding pursuant to CPLR article 78” (Matter of Garcha v City Ct. [City of Beacon], 39 AD3d 645 , 646 [2007]).

Rose, J.P, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.

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