Gee v. Desimone

Appellate Division of the Supreme Court of New York

Gee v. Desimone

128 A.D.3d 1116, 6 N.Y.S.3d 502

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

DecidedMay 7, 2015

StatusPublished

Cited by1 cases

This text of 128 A.D.3d 1116 (Gee v. Desimone) 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

Gee v. Desimone, 128 A.D.3d 1116, 6 N.Y.S.3d 502 (N.Y. Ct. App. 2015).

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Opinion

[1117]*1117Appeal from a judgment of the Supreme Court (Mercure, J.), entered August 27, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to notify the sentencing court and other individuals, in accordance with Correction Law § 601-a, that he was erroneously sentenced in 1998 as a persistent violent felony offender. Supreme Court granted respondent’s motion to dismiss the petition, finding that petitioner was collaterally estopped from relitigating his claims inasmuch as he previously had a full and fair opportunity to litigate the identical issues in a prior CPLR article 78 proceeding that was decided against him.

We affirm. As the record reflects that petitioner has already challenged his status as a persistent violent felony offender in a prior CPLR article 78 proceeding, he is barred from raising the same issue in this proceeding (see Matter of Martin v Central Off. Review Comm. of N.Y. State Dept. of Correctional Servs., 69 AD3d 1237, 1238 [2010]; People ex rel. Washington v Napoli, 69 AD3d 1066, 1067 [2010], appeal dismissed 14 NY3d 858 [2010]; Matter of LaRocco v Goord, 43 AD3d 500, 500 [2007]). Petitioner’s remaining contentions have been reviewed and found to be unpersuasive.

Peters, P.J., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed, without costs.

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[1117]*1117Appeal from a judgment of the Supreme Court (Mercure, J.), entered August 27, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to notify the sentencing court and other individuals, in accordance with Correction Law § 601-a, that he was erroneously sentenced in 1998 as a persistent violent felony offender. Supreme Court granted respondent’s motion to dismiss the petition, finding that petitioner was collaterally estopped from relitigating his claims inasmuch as he previously had a full and fair opportunity to litigate the identical issues in a prior CPLR article 78 proceeding that was decided against him.

We affirm. As the record reflects that petitioner has already challenged his status as a persistent violent felony offender in a prior CPLR article 78 proceeding, he is barred from raising the same issue in this proceeding (see Matter of Martin v Central Off. Review Comm. of N.Y. State Dept. of Correctional Servs., 69 AD3d 1237, 1238 [2010]; People ex rel. Washington v Napoli, 69 AD3d 1066, 1067 [2010], appeal dismissed 14 NY3d 858 [2010]; Matter of LaRocco v Goord, 43 AD3d 500, 500 [2007]). Petitioner’s remaining contentions have been reviewed and found to be unpersuasive.

Peters, P.J., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

128 A.D.3d 1116, 6 N.Y.S.3d 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gee-v-desimone-nyappdiv-2015.

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