Saunders v. Lupiano

Appellate Division of the Supreme Court of New York

Saunders v. Lupiano

30 A.D.2d 803, 292 N.Y.S.2d 44, 1968 N.Y. App. Div. LEXIS 3379

Appellate Division of the Supreme Court of the State of New York·Decided July 16, 1968·Published·Cited by 3 cases

Opinions

Application for an order pursuant to article 78 CPLR, directed to and against the Justices of the Supreme Court of the State of New York, County of New York, denied, without costs or disbursements, and without prejudice to renewal by petitioner of his application for youthful offender treatment without waiving his rights to trial by jury. We fully agree with the reasoning of the dissenting memorandum insofar as it concludes that the [804] petitioner is entitled to a jury trial as a matter of right, but we deny this application solely on the ground that the subject matter of this proceeding is not a proper one for article 78 relief. Except where otherwise provided by law, a proceeding under CPLR 7801 shall not be used to challenge a determination which was made in a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court. (CPLR 7801, subd. 2.) The petitioner is not entitled to the relief sought since he has a complete remedy by appeal from a judgment of conviction, if there be one. (Matter of Burton v. Marshall, 20 N Y 2d 797; Matter of Bloeth v. Marks, 20 A D 2d 372.) Concur — Capozzoli, Rabin and McNally, JJ.; Eager, J. P., and McGivern, J., dissent in the following memorandum:

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Application for an order pursuant to article 78 CPLR, directed to and against the Justices of the Supreme Court of the State of New York, County of New York, denied, without costs or disbursements, and without prejudice to renewal by petitioner of his application for youthful offender treatment without waiving his rights to trial by jury. We fully agree with the reasoning of the dissenting memorandum insofar as it concludes that the [804] petitioner is entitled to a jury trial as a matter of right, but we deny this application solely on the ground that the subject matter of this proceeding is not a proper one for article 78 relief. Except where otherwise provided by law, a proceeding under CPLR 7801 shall not be used to challenge a determination which was made in a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court. (CPLR 7801, subd. 2.) The petitioner is not entitled to the relief sought since he has a complete remedy by appeal from a judgment of conviction, if there be one. (Matter of Burton v. Marshall, 20 N Y 2d 797; Matter of Bloeth v. Marks, 20 A D 2d 372.) Concur — Capozzoli, Rabin and McNally, JJ.; Eager, J. P., and McGivern, J., dissent in the following memorandum:

Saunders v. Lupiano, 30 A.D.2d 803, 292 N.Y.S.2d 44, 1968 N.Y. App. Div. LEXIS 3379 (N.Y. Ct. App. 1968).

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30 A.D.2d 803 (Saunders v. Lupiano) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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