Burks v. Donalty

Appellate Division of the Supreme Court of New York

Burks v. Donalty

245 A.D.2d 1134, 667 N.Y.S.2d 566, 1997 N.Y. App. Div. LEXIS 13969

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 1997

StatusPublished

This text of 245 A.D.2d 1134 (Burks v. Donalty) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burks v. Donalty, 245 A.D.2d 1134, 667 N.Y.S.2d 566, 1997 N.Y. App. Div. LEXIS 13969 (N.Y. Ct. App. 1997).

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Opinion

—Petition unanimously dismissed without costs. Memorandum: In this CPLR article 78 proceeding, petitioner has failed to establish entitlement to the relief sought by way of either prohibition or mandamus. With respect to prohibition, petitioner failed to show a clear legal right to the relief sought and that respondents are proceeding or are about to proceed “without or in excess of jurisdiction” (CPLR 7803 [2]; see, Matter of Haggerty v Himelein, 89 NY2d 431, 435; Matter of Rush v Mordue, 68 NY2d 348, 352-353; La Rocca v Lane, 37 NY2d 575, 578-579, cert denied 424 US 968), and petitioner has available an adequate remedy at law (see, Matter of State of New York v King, 36 NY2d 59, 62). Similarly, mandamus is a remedy that is available only where there is established a clear legal right to the relief sought and then only to compel the performance of a purely ministerial act that does not involve the exercise of judgment or discretion (see, Matter of Crain Communications v Hughes, 74 NY2d 626, 628, rearg denied 74 NY2d 843; Matter of Goetz v Crane, 111 AD2d 729, 730, lv denied 65 NY2d 609).

Further, neither prohibition nor mandamus may be utilized to review errors of law that occur during a criminal proceeding, “however egregious and however unreviewable” (Matter of State of New York v King, supra, at 62), including some errors of constitutional magnitude (see, Matter of Rush v Mordue, supra, at 354; La Rocca v Lane, supra, at 580). Petitioner seeks collateral review of alleged errors of law in the pending criminal proceeding against him, all of which may be raised on direct appeal. (Original Proceeding Pursuant to CPLR art 78.) Present—Green, J. P., Lawton, Wisner, Callahan and Boehm, JJ.

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—Petition unanimously dismissed without costs. Memorandum: In this CPLR article 78 proceeding, petitioner has failed to establish entitlement to the relief sought by way of either prohibition or mandamus. With respect to prohibition, petitioner failed to show a clear legal right to the relief sought and that respondents are proceeding or are about to proceed “without or in excess of jurisdiction” (CPLR 7803 [2]; see, Matter of Haggerty v Himelein, 89 NY2d 431, 435; Matter of Rush v Mordue, 68 NY2d 348, 352-353; La Rocca v Lane, 37 NY2d 575, 578-579, cert denied 424 US 968), and petitioner has available an adequate remedy at law (see, Matter of State of New York v King, 36 NY2d 59, 62). Similarly, mandamus is a remedy that is available only where there is established a clear legal right to the relief sought and then only to compel the performance of a purely ministerial act that does not involve the exercise of judgment or discretion (see, Matter of Crain Communications v Hughes, 74 NY2d 626, 628, rearg denied 74 NY2d 843; Matter of Goetz v Crane, 111 AD2d 729, 730, lv denied 65 NY2d 609).

Further, neither prohibition nor mandamus may be utilized to review errors of law that occur during a criminal proceeding, “however egregious and however unreviewable” (Matter of State of New York v King, supra, at 62), including some errors of constitutional magnitude (see, Matter of Rush v Mordue, supra, at 354; La Rocca v Lane, supra, at 580). Petitioner seeks collateral review of alleged errors of law in the pending criminal proceeding against him, all of which may be raised on direct appeal. (Original Proceeding Pursuant to CPLR art 78.) Present—Green, J. P., Lawton, Wisner, Callahan and Boehm, JJ.

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Bluebook (online)

245 A.D.2d 1134, 667 N.Y.S.2d 566, 1997 N.Y. App. Div. LEXIS 13969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burks-v-donalty-nyappdiv-1997.

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