Opinion
2011-10-6
In the Matter of Justo RICHARDS, Appellant,v.Andrew CUOMO, as Attorney General of the State of New York, Respondent.
Justo Richards, Malone, appellant pro se.Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.
LAHTINEN, J.
Appeal (transferred to this Court by order of the Court of Appeals) from a judgment of the Supreme Court (Feldstein, J.), entered October 22, 2010 in Franklin County, which, in a proceeding pursuant to CPLR article 78, sua sponte, dismissed the petition.
Petitioner, an inmate, was previously convicted of, among other things, robbery in the first degree ( People v. Richards, 118 A.D.2d 604, 499 N.Y.S.2d 209 [1986], lv. denied 67 N.Y.2d 1056, 504 N.Y.S.2d 1032, 495 N.E.2d 365 [1986] ) pursuant to a statutory provision he claims is unconstitutional. As relevant herein, petitioner attempted to commence this CPLR article 78 proceeding seeking a writ of prohibition solely against respondent, the Attorney General, so as to, among other things, bar the “unconstitutional policy and custom of applying the scope, sweep and range of the ... statute.” Supreme Court declined
to issue an order to show cause and dismissed the proceeding sua sponte, finding the verified petition to be deficient on its face. Petitioner's appeal from the court's judgment was originally filed in the Court of Appeals before being transferred to this Court.
We affirm. It is well settled that the extraordinary remedy of prohibition is only available where a “body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction” (CPLR 7803[2] ) and there is a clear legal right to such relief ( see Matter of Law Offs. of Andrew F. Capoccia v. Spitzer, 270 A.D.2d 643, 645, 704 N.Y.S.2d 356 [2000], lv. denied 95 N.Y.2d 755, 711 N.Y.S.2d 833, 733 N.E.2d 1102 [2000] ). While “[p]rohibition ... may be available against the Attorney–General when exercising or threatening to exercise an ultra vires prosecutorial function” ( Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276 [1997] ), it is clear from the verified petition that petitioner is making no claims of such a nature. Instead, he faults respondent's office for refusing to “enjoin the invalidity” of an allegedly unconstitutional statute and “expunge[ ]” his conviction. Under these circumstances, Supreme Court properly dismissed the petition ( see Matter of Pettus v. New York State Dept. of Correctional Servs., 77 A.D.3d 996, 908 N.Y.S.2d 373 [2010]; Matter of Escalera v. State of New York, 67 A.D.3d 1137, 1137–1138, 887 N.Y.S.2d 873 [2009] ).
ORDERED that the judgment is affirmed, without costs.
SPAIN, J.P., ROSE, GARRY and EGAN JR., JJ., concur.