Rivette v. McGrath

Appellate Division of the Supreme Court of New York

Rivette v. McGrath

241 A.D.2d 717, 660 N.Y.S.2d 101, 1997 N.Y. App. Div. LEXIS 7475

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

DecidedJuly 17, 1997

StatusPublished

Cited by4 cases

This text of 241 A.D.2d 717 (Rivette v. McGrath) 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

Rivette v. McGrath, 241 A.D.2d 717, 660 N.Y.S.2d 101, 1997 N.Y. App. Div. LEXIS 7475 (N.Y. Ct. App. 1997).

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Opinion

Casey, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to prohibit respondent Rensselaer County Judge from enforcing an order appointing respondent Peter J. Moschetti, Jr. as special prosecutor in a criminal action against petitioner.

Petitioner commenced this CPLR article 78 proceeding in the nature of prohibition, claiming that respondent Rensselaer County Judge (hereinafter respondent) acted in excess of his authority in appointing a special prosecutor to represent the People in a criminal matter against him. Petitioner has already been convicted of the charges contained in the indictment filed against him and his appeal from this conviction is now pending.

The question of the exercise of respondent’s discretion in appointing a special prosecutor under County Law § 701 is not the proper subject for review in a CPLR article 78 proceeding which requests relief by way of prohibition (see, Matter of Kavanaugh v Vogt, 58 NY2d 678, 679; Matter of Dentes v Friedlander, 167 AD2d 757). Inasmuch as petitioner has an adequate remedy at law, i.e., direct appeal from his conviction (see, Matter of Carney v Feldstein, 193 AD2d 1016, 1017), this proceeding must be dismissed (see, Matter of State of New York v King, 36 NY2d 59, 62).

[718]*718Mikoll, J. P., Crew III, Yesawich Jr. and Spain, JJ., concur. Adjudged that the petition is dismissed, without costs.

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Casey, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to prohibit respondent Rensselaer County Judge from enforcing an order appointing respondent Peter J. Moschetti, Jr. as special prosecutor in a criminal action against petitioner.

Petitioner commenced this CPLR article 78 proceeding in the nature of prohibition, claiming that respondent Rensselaer County Judge (hereinafter respondent) acted in excess of his authority in appointing a special prosecutor to represent the People in a criminal matter against him. Petitioner has already been convicted of the charges contained in the indictment filed against him and his appeal from this conviction is now pending.

The question of the exercise of respondent’s discretion in appointing a special prosecutor under County Law § 701 is not the proper subject for review in a CPLR article 78 proceeding which requests relief by way of prohibition (see, Matter of Kavanaugh v Vogt, 58 NY2d 678, 679; Matter of Dentes v Friedlander, 167 AD2d 757). Inasmuch as petitioner has an adequate remedy at law, i.e., direct appeal from his conviction (see, Matter of Carney v Feldstein, 193 AD2d 1016, 1017), this proceeding must be dismissed (see, Matter of State of New York v King, 36 NY2d 59, 62).

[718]*718Mikoll, J. P., Crew III, Yesawich Jr. and Spain, JJ., concur. Adjudged that the petition is dismissed, without costs.

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Bluebook (online)

241 A.D.2d 717, 660 N.Y.S.2d 101, 1997 N.Y. App. Div. LEXIS 7475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivette-v-mcgrath-nyappdiv-1997.

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