Ballentine v. Harris

75 A.D.2d 851, 432 N.Y.S.2d 156, 1980 N.Y. App. Div. LEXIS 11461

Opinion

In two consolidated proceedings pursuant to CPLR article 78 to vacate a judgment of conviction, the petitioner appeals from a judgment of the Supreme Court, Dutchess County, July 6, 1979, which dismissed his petitions. Judgment affirmed, without costs or disbursements. A proceeding pursuant to CPLR article 78 will not lie for the redress of an error committed upon the trial of a criminal prosecution (CPLR 7801, subd 2). The instant proceedings are lacking in merit and are but attempts to invoke the extraordinary remedy provided by CPLR article 78 as a substitute for a further appeal (see Matter of Burton v Marshall, 20 NY2d 797; Matter of Bloeth v Marks, 20 AD2d 372; Matter of Ferraro v Supreme Ct., County of Queens, 36 AD2d 841; Matter of Attica Bros. [Barbatunje] v Additional Term of Supreme Ct., County of Erie, 45 AD2d 10). Gibbons, J. P., Gulotta, Margett and O’Connor, JJ., concur.