Porter v. Senkowski

263 A.D.2d 708, 692 N.Y.S.2d 859, 1999 N.Y. App. Div. LEXIS 7998

Opinion

—Appeal from a judgment of the Supreme Court (McGill, J.), entered August 10, 1998 in Clinton County, which denied petitioner’s application for an order to show cause commencing a proceeding against respondents pursuant to CPLR article 78.

Petitioner, a pro se prison inmate, filed a verified petition purporting to commence a CPLR article 78 proceeding seeking an order to compel the Clinton County District Attorney to investigate various criminal charges petitioner had made against Department of Correctional Services personnel. Supreme Court treated the petition as a request for an order to show cause and denied the request, prompting petitioner to file a notice of appeal. The appeal must be dismissed insofar as the denial of an ex parte order to show cause is not appealable (see, Matter of Konigsberg v Coughlin, 200 AD2d 848). In any event, even treating petitioner’s papers on appeal as an application for review pursuant to CPLR 5704 (a), we must deny the application (see, Matter of Malik v Coughlin, 128 AD2d 977). Given the allegations in the petition and the District Attorney’s broad power in determining when and in what manner to prosecute crimes (see generally, Holtzman v Goldman, 71 NY2d 564, 573), we find no reason to disturb Supreme Court’s conclusion that petitioner could not have prevailed in this CPLR article 78 proceeding.

Cardona, P. J., Mercure, Peters, Carpinello and Graffeo, JJ., concur. Ordered that the appeal is dismissed, without costs.