Lebron v. Smith

Appellate Division of the Supreme Court of New York

Lebron v. Smith

17 A.D.3d 195, 792 N.Y.S.2d 329, 2005 N.Y. App. Div. LEXIS 3940

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

DecidedApril 14, 2005

StatusPublished

Cited by1 cases

This text of 17 A.D.3d 195 (Lebron v. Smith) 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

Lebron v. Smith, 17 A.D.3d 195, 792 N.Y.S.2d 329, 2005 N.Y. App. Div. LEXIS 3940 (N.Y. Ct. App. 2005).

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Opinion

Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered April 26, 2004, which denied petitioner’s application to compel respondents to perform certain acts, and dismissed the petition, unanimously affirmed, without costs.

In this single proceeding, petitioner seeks to have the five respondent agencies perform various acts, including crediting of time served by the Department of Correction, the production of various documents by the Department of Correction, Police Department and Metropolitan Transportation Authority (MTA), the performance of DNA testing and other tests by the District Attorney’s office, and the expungement of a portion of his presentence report by the Department of Probation. The claims were improperly joined since they do not involve common questions of law or fact (cf. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C401:2, at 442 [2001]). On the merits, petitioner fails to show that his alleged Freedom of Information Law request and appeal involving the Department of Correction were addressed to the appropriate officials (CPLR 3013). He fails to rebut MTA’s showing that the information he seeks is duplicative of information he has already sought and received. His demand for expungement of a portion of his presentence report should have been made before his sentencing (see Matter of Hughes v New York City Dept. of Probation, 281 AD2d 229 [2001]). Similarly, his demand for DNA and other testing is in the nature of postconviction relief that should be sought by way of CPL article 440. Finally, his claim for credit for additional time served is barred by res judicata. Concur—Mazzarelli, J.P., Andrias, Friedman, Sweeny and Catterson, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered April 26, 2004, which denied petitioner’s application to compel respondents to perform certain acts, and dismissed the petition, unanimously affirmed, without costs.

In this single proceeding, petitioner seeks to have the five respondent agencies perform various acts, including crediting of time served by the Department of Correction, the production of various documents by the Department of Correction, Police Department and Metropolitan Transportation Authority (MTA), the performance of DNA testing and other tests by the District Attorney’s office, and the expungement of a portion of his presentence report by the Department of Probation. The claims were improperly joined since they do not involve common questions of law or fact (cf. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C401:2, at 442 [2001]). On the merits, petitioner fails to show that his alleged Freedom of Information Law request and appeal involving the Department of Correction were addressed to the appropriate officials (CPLR 3013). He fails to rebut MTA’s showing that the information he seeks is duplicative of information he has already sought and received. His demand for expungement of a portion of his presentence report should have been made before his sentencing (see Matter of Hughes v New York City Dept. of Probation, 281 AD2d 229 [2001]). Similarly, his demand for DNA and other testing is in the nature of postconviction relief that should be sought by way of CPL article 440. Finally, his claim for credit for additional time served is barred by res judicata. Concur—Mazzarelli, J.P., Andrias, Friedman, Sweeny and Catterson, JJ.

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Bluebook (online)

17 A.D.3d 195, 792 N.Y.S.2d 329, 2005 N.Y. App. Div. LEXIS 3940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lebron-v-smith-nyappdiv-2005.

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