Opinion
262 OP 17–01798
03-16-2018
In the Matter of Charles E. HENRY, Jr., Petitioner-Plaintiff, v. Hon. Mark H. FANDRICH, Jon E. Budelmann, Esq., Cayuga County District Attorney's Office and County of Cayuga, Respondents–Defendants.
JARROD W. SMITH, P.L.L.C., JORDAN (JARROD W. SMITH OF COUNSEL), FOR PETITIONER–PLAINTIFF. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (FREDERICK R. WESTPHAL OF COUNSEL), FOR RESPONDENTS–DEFENDANTS JON E. BUDELMANN, ESQ., CAYUGA COUNTY DISTRICT ATTORNEY'S OFFICE AND COUNTY OF CAYUGA.
JARROD W. SMITH, P.L.L.C., JORDAN (JARROD W. SMITH OF COUNSEL), FOR PETITIONER–PLAINTIFF.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (FREDERICK R. WESTPHAL OF COUNSEL), FOR RESPONDENTS–DEFENDANTS JON E. BUDELMANN, ESQ., CAYUGA COUNTY DISTRICT ATTORNEY'S OFFICE AND COUNTY OF CAYUGA.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Petitioner–plaintiff (petitioner) commenced this original hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, a declaration that he is eligible for judicial diversion and that respondent-defendant judge (respondent judge) should have referred his case to the Cayuga County Treatment Court Judge for a hearing. Respondent judge found that petitioner was statutorily eligible for diversion pursuant to CPL 216.00, but he denied petitioner's application to transfer his case to judicial diversion. We conclude that petitioner is not entitled to mandamus relief. "[T]he remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion" ( Matter of Brusco v. Braun , 84 N.Y.2d 674, 679, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994] ). Inasmuch as the determination whether to allow a defendant to participate in judicial diversion is a discretionary one to be made by the court (see CPL 216.05[4] ; People v. Driscoll , 147 A.D.3d 1157, 1159, 48 N.Y.S.3d 522 [3d Dept. 2017], lv. denied 29 N.Y.3d 1078, 86 N.E.3d 255, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ; Matter of Doorley v. DeMarco , 106 A.D.3d 27, 34, 962 N.Y.S.2d 546 [4th Dept. 2013] ), petitioner has failed to demonstrate a clear legal right to the relief sought (see Matter of Carty v. Hall , 92 A.D.3d 1191, 1192, 939 N.Y.S.2d 609 [3d Dept. 2012] ; Matter of Duffy v. Jaeger , 78 A.D.3d 830, 830, 910 N.Y.S.2d 654 [2d Dept. 2010], lv. denied 17 N.Y.3d 705, 2011 WL 2566538 [2011] ; see generally Matter of Francois v. Dolan , 95 N.Y.2d 33, 37, 709 N.Y.S.2d 898, 731 N.E.2d 614 [2000] ). We further conclude that petitioner is not entitled to a writ of prohibition or declaratory relief. Those forms of relief are not appropriate where a criminal defendant may "raise legal arguments and receive appropriate relief ... in the criminal prosecution" ( Cayuga Indian Nation of N.Y. v. Gould , 14 N.Y.3d 614, 633, 904 N.Y.S.2d 312, 930 N.E.2d 233 [2010], cert. denied 562 U.S. 953, 131 S.Ct. 353, 178 L.Ed.2d 251 [2010] ). Petitioner may raise the legal arguments he now raises in an appeal from any subsequent judgment of conviction (see e.g. People v. Chavis , 151 A.D.3d 1757, 1758, 56 N.Y.S.3d 744 [4th Dept. 2017], lv. denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017]; People v. DeYoung , 95 A.D.3d 71, 77–80, 940 N.Y.S.2d 306 [2d Dept. 2012] ).
It is hereby ORDERED that said petition/complaint is unanimously denied without costs.