Matter of Wheeler v Kahn

Matter of Wheeler v Kahn 2017 NY Slip Op 06366 Decided on August 30, 2017 Appellate Division, Second 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 August 30, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
FRANCESCA E. CONNOLLY, JJ.
2017-04385

[*1]In the Matter of Timothy Wheeler, petitioner,

v

Barbara Kahn, etc., et al., respondents.

Reynolds, Caronia, Gianelli & La Pinta, P.C., Hauppauge, NY (Anthony M. La Pinta of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, NY (Angel M. Guardiola II of counsel), for respondent Barbara Kahn.

Thomas J. Spota, District Attorney, Riverhead, NY (Alfred Croce of counsel), respondent pro se.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Barbara Kahn, an Acting Justice of the Supreme Court, Suffolk County, to sentence the petitioner in accordance with his plea agreement of October 19, 2016, in a matter entitled People v Wheeler, pending in that court under Indictment No. 1887B-2015, or in the nature of prohibition to prohibit the vacatur of the petitioner's plea of guilty.

ADJUDGED that the petition and proceeding are dismissed for lack of subject matter jurisdiction insofar as asserted against the respondent Suffolk County District Attorney's Office; and it is further,

ADJUDGED that the petition is otherwise denied and the proceeding is otherwise dismissed on the merits, without costs or disbursements.

The petitioner commenced this proceeding pursuant to CPLR article 78, inter alia, to compel the respondent Barbara Kahn, an Acting Justice of the Supreme Court, to abide by terms of the petitioner's plea agreement entered into on October 19, 2016. Alternatively, the petitioner seeks to prohibit the respondent Barbara Kahn from vacating his plea of guilty. The petitioner named as a respondent not only Acting Justice Kahn, but also the Suffolk County District Attorney's Office.

The petition and the proceeding must be dismissed against the Suffolk County District Attorney's Office, since it is neither a Judge of a County Court nor a Justice of the Supreme Court and, therefore, this Court lacks subject matter jurisdiction over the proceeding insofar as asserted against it (see CPLR 7804[b]; 506[b][1]; Matter of Nolan v Lungen, 61 NY2d 788, 789-790; Matter of Canestro v Pineda-Kirwan, 132 AD3d 863, 863; Matter of Liang v Hart, 132 AD3d 765, 765; Matter of Lawtone-Bowles v Klein, 131 AD3d 697, 698).

"Because of its extraordinary nature, prohibition is available only where there is a [*2]clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Matter of Holtzman v Goldman, 71 NY2d 564, 569; see Matter of Rush v Mordue, 68 NY2d 348, 352; Matter of Smith v Knipel, 151 AD3d 1067; Matter of Cilibrasi v Chun, 151 AD3d 722; Matter of Kirkorov v Justices of the Supreme Ct. of Queens County, 32 AD3d 430). "Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought" (Matter of Kirkorov v Justices of the Supreme Ct. of Queens County, 32 AD3d at 431; see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16).

The petitioner here has failed to demonstrate a clear legal right to the relief sought.

LEVENTHAL, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court