Wong v. Chetta

271 A.D.2d 451, 707 N.Y.S.2d 838, 2000 N.Y. App. Div. LEXIS 3822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2000
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 to “vacate and set aside” an amended judgment of the Supreme Court, Queens County, dated May 26, 1999, in a criminal action entitled People v Wong, pending in the Supreme Court, Queens County, under S.C.I. No. 11208/91, and application for leave to prosecute the proceeding as a poor person. Cross motion by the respondent Philip J. Chetta to dismiss the proceeding.

Ordered that the application for leave to prosecute the proceeding as a poor person is granted; and it is further,

Ordered that the cross motion to dismiss is granted; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

A proceeding pursuant to CPLR article 78 is not the appropriate method to seek review of issues that could be raised on direct appeal, and therefore, this proceeding must be dismissed (see, Matter of Tyler v Forma, 231 AD2d 891; Matter of Sans v Doyle, 175 AD2d 670). In any event, this proceeding is untimely (see, CPLR 217). Thompson, J. P., Feuerstein, Schmidt and Smith, JJ., concur.