Nieblas v. Kings County District Attorney

209 A.D.2d 703, 619 N.Y.S.2d 675, 1994 N.Y. App. Div. LEXIS 11683

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1994
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 in the nature of an application for a writ of mandamus to compel the respondent Kings County District Attorney to prosecute certain police officers for perjury, the petitioner appeals from a judgment of the Supreme Court, Kings County (Gerges, J.), dated February 22, 1993, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The appellant, who was convicted of various counts of criminal sale of a controlled substance after a jury trial, sought to compel the Kings County District Attorney to prosecute for perjury police officers who testified at his trial and at a suppression hearing. The Supreme Court dismissed the proceeding.

It is well-settled that the decision whether to prosecute is entrusted to the sole discretion of the District Attorney (see, Matter of Holtzman v Hellenbrand, 130 AD2d 749; see also, People v Di Falco, 44 NY2d 482; Johnson v Town of Colonie, 102 AD2d 925; People v Mackell, 47 AD2d 209, affd 40 NY2d 59; Matter of Hassan v Magistrate’s Ct., 20 Misc 2d 509). Therefore, the dismissal of the proceeding was proper. Miller, J. P., O’Brien, Joy and Krausman, JJ., concur.