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Wilcox v. Dwyer

48 N.Y.2d 1003 Court N.Y. Decision date 1980-01-08 English

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p. 1003
In the Matter of Charles J. Wilcox, as District Attorney of Rensselaer County, Respondent, v M. Andrew Dwyer, Jr., as Judge of the County Court of Rensselaer County, et al., Appellants, and Clinton Saddlemire, Respondent.
Argued January 3, 1980;
decided January 8, 1980
p. 1004
APPEARANCES OF COUNSEL
Robert Abrams, Attorney-General (Peter J. Dooley, Shirley Adelson Siegel and Lawrence L. Doolittle of counsel), for M. Andrew Dwyer, as Judge of the County Court of Rensselaer County, appellant.
Jerome K. Frost and Mary D. Audi for Clarisse Philips, appellant.
Charles J. Wilcox, District Attorney (Robert L. Adams of counsel), respondent pro se.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the petition dismissed, without costs. The People may appeal from the sentence (CPL 450.20, subd 4; 450.30, subd 2). On the appeal they may argue that procedures prescribed by statute were not followed at the sentencing (People v Yanicelli, 33 NY2d 621 , 40 NY2d 598 ). That would include a claim that the court improperly denied the People access to the presentencing report by misinterpreting CPL 390.50 (subd 2). In view of the fact that the issue may be raised on direct appeal, it was error for the Appellate Division to have entertained the application for article 78 relief in the nature of prohibition.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

p. 1005
Judgment reversed, etc.

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