Murphy v. Nicolai

Appellate Division of the Supreme Court of New York

Murphy v. Nicolai

160 A.D.2d 704, 554 N.Y.S.2d 43, 1990 N.Y. App. Div. LEXIS 3866

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

DecidedApril 2, 1990

StatusPublished

This text of 160 A.D.2d 704 (Murphy v. Nicolai) 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

Murphy v. Nicolai, 160 A.D.2d 704, 554 N.Y.S.2d 43, 1990 N.Y. App. Div. LEXIS 3866 (N.Y. Ct. App. 1990).

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Opinion

—Proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondents, a Judge of the County Court of Westchester County and the Westchester County District Attorney, from proceeding to trial on counts one, three, four, five and six of Westchester County indictment Number 87-01580-01, in which the petitioner has moved to stay the imposition of sentence.

Adjudged that the proceeding is dismissed, without costs or disbursements; and it is further,

Ordered that the motion is denied.

On January 31, 1990, petitioner was found guilty of each of the seven counts contained in Westchester County indictment Number 87-01580-01. His conviction renders the instant CPLR article 78 proceeding academic. To the extent that the petition may be construed as an application to prohibit the imposition of sentence, it must also be denied. CPL 380.20 mandates that the trial court pronounce sentence in every case where a conviction is entered. At this juncture, staying the imposition of sentence would merely delay the petitioner’s right to have his claims considered on direct appeal. The extraordinary remedy of a writ of prohibition does not properly lie in view of [705]*705the availability of an adequate remedy at law (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Molea v Marasco, 64 NY2d 718). Mangano, J. P., Bracken, Lawrence, Eiber and Sullivan, JJ., concur.

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—Proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondents, a Judge of the County Court of Westchester County and the Westchester County District Attorney, from proceeding to trial on counts one, three, four, five and six of Westchester County indictment Number 87-01580-01, in which the petitioner has moved to stay the imposition of sentence.

Adjudged that the proceeding is dismissed, without costs or disbursements; and it is further,

Ordered that the motion is denied.

On January 31, 1990, petitioner was found guilty of each of the seven counts contained in Westchester County indictment Number 87-01580-01. His conviction renders the instant CPLR article 78 proceeding academic. To the extent that the petition may be construed as an application to prohibit the imposition of sentence, it must also be denied. CPL 380.20 mandates that the trial court pronounce sentence in every case where a conviction is entered. At this juncture, staying the imposition of sentence would merely delay the petitioner’s right to have his claims considered on direct appeal. The extraordinary remedy of a writ of prohibition does not properly lie in view of [705]*705the availability of an adequate remedy at law (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Molea v Marasco, 64 NY2d 718). Mangano, J. P., Bracken, Lawrence, Eiber and Sullivan, JJ., concur.

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Bluebook (online)

160 A.D.2d 704, 554 N.Y.S.2d 43, 1990 N.Y. App. Div. LEXIS 3866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-nicolai-nyappdiv-1990.

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