Davis v. Kohout

35 A.D.3d 1173, 825 N.Y.S.2d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2006
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) to prohibit respondents from proceeding with the underlying criminal action in the Livingston County Court.

It is hereby ordered that the petition be and the same hereby is unanimously dismissed without costs.

Memorandum: While an indictment was pending against petitioner, her attorney became concerned that the Livingston County District Attorney had knowingly used perjured testimony before the grand jury and intended to do so at trial. Petitioner’s attorney commenced this original CPLR article 78 proceeding in this Court seeking a writ of prohibition prohibiting County Court and the District Attorney from proceeding with the underlying criminal action. Thereafter, petitioner’s attorney was permitted to withdraw from representing petitioner in the criminal action, but he continued to represent petitioner in this proceeding. It is uncontroverted that petitioner, represented by a different attorney, has entered an Alford plea in satisfaction of the indictment. In view of petitioner’s guilty plea, this petition must be dismissed as moot. Petitioner chose not to litigate the issue of her guilt in the underlying action and thus the allegations in her petition are academic. Present— Hurlbutt, J.E, Smith, Centra and Pine, JJ.