Matter of Reed v Annucci

Matter of Reed v Annucci 2015 NY Slip Op 08561 Decided on November 20, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.
1171 CA 15-00035

[*1]IN THE MATTER OF ROBERT REED, PETITIONER-APPELLANT,

v

ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION AND CHRISTOPHER MOSS, CHEMUNG COUNTY SHERIFF, RESPONDENTS-RESPONDENTS. (APPEAL NO. 2.)

ROBERT REED, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT-RESPONDENT ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY

SHERIFF.

Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered November 17, 2014 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner, an inmate in the custody of respondent New York State Department of Corrections and Community Supervision (DOCCS), commenced this CPLR article 78 proceeding challenging the computation of his sentence. Petitioner seeks, inter alia, exclusion of the sentence imposed by Niagara County Court upon his conviction of two counts of rape in the first degree (People v Reed, 212 AD2d 962, lv denied 86 NY2d 739), contending that he was erroneously sentenced for crimes of which he was allegedly acquitted. We agree with petitioner that Supreme Court erred in sua sponte joining the Chemung County Sheriff as a party without petitioner's consent (see New Medico Assoc. v Empire Blue Cross & Blue Shield, 267 AD2d 757, 758-759), and that the motion of DOCCS to dismiss the petition was untimely (see CPLR 2103 [b] [2]). We nevertheless conclude that the court properly considered the merits of the untimely motion (see Mohen v Stepanov, 59 AD3d 502, 504), and declined to grant petitioner relief based upon the failure of DOCCS to file its motion in a timely manner (see Matter of Posada v New York State Dept. of Health, 75 AD3d 880, 884, lv denied 15 NY3d 712). The court also properly dismissed the petition. "[A] proceeding pursuant to CPLR article 78 generally does not lie to review errors claimed to have occurred in a criminal proceeding or to challenge a judgment of conviction rendered by a criminal court" (Matter of Garcha v City Ct. [City of Beacon], 39 AD3d 645, 646; see Matter of Hennessy v Gorman, 58 NY2d 806, 807).

Entered: November 20, 2015

Frances E. Cafarell

Clerk of the Court