Opinion
2001-08672
Submitted November 4, 2002.
December 2, 2002.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel Richard A. Brown, District Attorney of Queens County, to file an accusatory instrument, the petitioner appeals from a judgment of the Supreme Court, Queens County (Taylor, J.), dated June 15, 2001, which denied the petition and dismissed the proceeding.
Crowley, Crowley Kaufman, Elmhurst, N.Y. (Scott G. Kaufman of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and James A. Dolan of counsel), respondent pro se.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
It is well settled that the decision whether to prosecute is entrusted to the sole discretion of the District Attorney (see Matter of Nieblas v. Kings County Dist. Attorney, 209 A.D.2d 703; Matter of Hynes v. Demarest, 202 A.D.2d 669; see also People v. DiFalco, 44 N.Y.2d 482). Mandamus cannot be used to compel a purely discretionary act by a public official (see Matter of Mullen v. Axelrod, 74 N.Y.2d 580; Matter of Milek v. Town of Hempstead, 294 A.D.2d 440). Accordingly, the dismissal of the proceeding was proper.
FEUERSTEIN, J.P., SMITH, O'BRIEN and ADAMS, JJ., concur.