Opinion
2012-02-2
In the Matter of Robert I. REED, Appellant, v. BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.
Robert I. Reed, Raybrook, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.
Robert I. Reed, Raybrook, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 25, 2011 in Franklin County, which denied petitioner's application for an order to show cause to commence a CPLR article 78 proceeding.
Petitioner currently is incarcerated upon his conviction of two counts of rape in the first degree ( People v. Reed, 212 A.D.2d 962, 624 N.Y.S.2d 693 [1995], lv. denied 86 N.Y.2d 739, 631 N.Y.S.2d 620, 655 N.E.2d 717 [1995] ) and previously has commenced various unsuccessful proceedings challenging his conviction ( Matter of Reed v. Fischer, 79 A.D.3d 1517, 912 N.Y.S.2d 468 [2010]; Matter of Reed v. Travis, 19 A.D.3d 829, 797 N.Y.S.2d 597 [2005], lv. denied 5 N.Y.3d 708, 803 N.Y.S.2d 29, 836 N.E.2d 1152 [2005]; People ex rel. Reed v. Travis, 12 A.D.3d 1102, 784 N.Y.S.2d 403 [2004], lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092 [2005]; Reed v. Great Meadow Correctional Facility, 981 F.Supp. 184 [1997] ). When petitioner sought to commence another CPLR article 78 proceeding to overturn his conviction based upon the alleged invalidity of the commitment order issued by the sentencing court, Supreme Court treated the application as an ex parte request for an order to show cause and denied it. Petitioner now appeals.
It is well settled that no appeal lies from the denial of an ex parte application for an order to show cause ( see Matter of Tafari v. Rock, 85 A.D.3d 1485, 925 N.Y.S.2d 902 [2011], lv. dismissed 17 N.Y.3d 949, 936 N.Y.S.2d 73, 959 N.E.2d 1022 [2011]; Matter of Harris v. Travis, 302 A.D.2d 649, 753 N.Y.S.2d 771 [2003] ). Consequently, the appeal must be dismissed.
ORDERED that the appeal is dismissed, without costs.