Opinion
2013-12-26
In the Matter of Otes G. RODRIGUEZ, Appellant, v. Thomas LAVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.
Otes G. Rodriguez, Dannemora, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Otes G. Rodriguez, Dannemora, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
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 N.Y.2d 806, 807, 459 N.Y.S.2d 261, 445 N.E.2d 644 [1983]; see Matter of Carpenter v. Corcoran, 75 A.D.3d 1110, 1111, 903 N.Y.S.2d 291 [2010], lv. denied15 N.Y.3d 712, 2010 WL 4181844 [2010] ), the proceeding was properly dismissed. Clearly, respondent has no authority to vacate the judgment of conviction ( see Matter of Reed v. Travis, 19 A.D.3d 829, 830, 797 N.Y.S.2d 597 [2005], lv. denied5 N.Y.3d 708, 803 N.Y.S.2d 29, 836 N.E.2d 1152 [2005] ), and such challenges must be made by directly appealing the judgment of conviction ( seeCPL 450.10[1]; 450.60[3]; 470.15[1]; Matter of Carpenter v. Corcoran, 75 A.D.3d at 1111, 903 N.Y.S.2d 291). Here, petitioner had a full opportunity to challenge the judgment of conviction on direct appeal and was unsuccessful (People v. Rodriguez, 32 A.D.3d 1203, 821 N.Y.S.2d 331 [2006], lv. denied8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 [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 A.D.3d 645, 646, 833 N.Y.S.2d 611 [2007] ).
ORDERED that the judgment is affirmed, without costs. ROSE, J.P., STEIN, McCARTHY and GARRY, JJ., concur.