Opinion
Argued January 3, 1980
Decided January 8, 1980
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Robert Abrams, Attorney-General (Peter J. Dooley, Shirley Adelson Siegel and Lawrence L. Doolittle of counsel), for M. Andrew Dwyer, as Judge of the County Court of Rensselaer County, appellant.
Jerome K. Frost and Mary D. Audi for Clarisse Philips, appellant.
Charles J. Wilcox, District Attorney (Robert L. Adams of counsel), respondent pro se.
MEMORANDUM.
The judgment of the Appellate Division should be reversed and the petition dismissed, without costs. The People may appeal from the sentence (CPL 450.20, subd 4; 450.30, subd 2). On the appeal they may argue that procedures prescribed by statute were not followed at the sentencing (People v Yanicelli, 33 N.Y.2d 621, 40 N.Y.2d 598). That would include a claim that the court improperly denied the People access to the presentencing report by misinterpreting CPL 390.50 (subd 2). In view of the fact that the issue may be raised on direct appeal, it was error for the Appellate Division to have entertained the application for article 78 relief in the nature of prohibition.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Judgment reversed, etc.