Matter of Gee v Desimone

Matter of Gee v Desimone 2015 NY Slip Op 03886 Decided on May 7, 2015 Appellate Division, Third 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 and Entered: May 7, 2015
517786

[*1]In the Matter of CARL GEE, Appellant,

v

RICHARD DESIMONE, as Associate Counsel in Charge of Office of Sentencing Review, Respondent.

Calendar Date: March 31, 2015
Before: Peters, P.J., Garry, Lynch and Devine, JJ.

Carl Gee, Auburn, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Mercure, J.), entered August 27, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to notify the sentencing court and other individuals, in accordance with Correction Law § 601-a, that he was erroneously sentenced in 1998 as a persistent violent felony offender. Supreme Court granted respondent's motion to dismiss the petition, finding that petitioner was collaterally estopped from relitigating his claims inasmuch as he previously had a full and fair opportunity to litigate the identical issues in a prior CPLR article 78 proceeding that was decided against him.

We affirm. As the record reflects that petitioner has already challenged his status as a persistent violent felony offender in a prior CPLR article 78 proceeding, he is barred from raising the same issue in this proceeding (see Matter of Martin v Central Off. Review Comm. of N.Y. State Dept. of Correctional Servs., 69 AD3d 1237, 1238 [2010]; People ex rel. Washington v Napoli, 69 AD3d 1066, 1067 [2010], appeal dismissed 14 NY3d 858 [2010]; Matter of LaRocco v Goord, 43 AD3d 500, 500 [2007]). Petitioner's remaining contentions have been reviewed and found to be unpersuasive.

Peters, P.J., Garry, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.