Gayle v. Lewis

212 A.D.2d 919, 622 N.Y.S.2d 626, 1995 N.Y. App. Div. LEXIS 1611

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 1995
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Teresi, J.), entered March 23, 1994 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as untimely.

Petitioner was convicted upon his plea of guilty of criminal sale of a controlled substance in the second degree and sentenced on June 18, 1991 to a term of imprisonment of six years to life. Petitioner subsequently initiated this CPLR article 78 proceeding in January 1994, requesting that Supreme Court direct the Ulster County Probation Officer who authored the presentence report that had been provided to County Court to expunge allegedly inaccurate information contained therein. Petitioner was required to contest the accuracy of information in the presentence report prior to sentencing in County Court. Assuming, arguendo, that petitioner may bring a CPLR article 78 proceeding to challenge the accuracy of such information in this manner, we agree with Supreme Court that petitioner’s application was untimely.

Mikoll, J. P., Crew III, White, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.