Billings v. Erlbaum

306 A.D.2d 526, 761 N.Y.S.2d 865, 2003 N.Y. App. Div. LEXIS 7684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 2003
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent William M. Erlbaum, a Justicfe of the Supreme Court, from issuing an order without holding a hearing on the petitioner’s motion pursuant to CPL 330.30 to set aside a jury verdict in an underlying case entitled People v Billings, pending in the Supreme Court, Queens County, under Indictment No. N10430/01. Motion by the petitioner to stay the respondent Justice from issuing an order pending the determination of the proceeding, and application for leave to prosecute the proceeding as a poor person.

Upon the papers filed in support of the proceeding, motion, and application and no papers having been filed in opposition thereto, it is

Ordered that the motion is denied as academic; and it is further,

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed as academic, without costs or disbursements.

The underlying motion pursuant to CPL 330.30 was determined by order of the Supreme Court, Queens County, dated May 3, 2003. The petitioner’s remedy is to raise his claims on direct appeal from any judgment of conviction which may ultimately be rendered. H. Miller, J.P., Schmidt, Crane and Cozier, JJ., concur.