IN RE: OTES G. RODRIGUEZ, Appellant, v. THOMAS LAVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.
MEMORANDUM AND ORDER
Calendar Date: October 22, 2013
Appeal from a judgment of the Supreme Court (Lawliss, J.), entered August 8, 2012 in Clinton County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging his underlying conviction. Supreme Court dismissed the petition, concluding that petitioner's challenges were not properly raised in a CPLR article 78 proceeding. Inasmuch as “[a]n article 78 proceeding generally does not lie to review error claimed to have occurred in a criminal proceeding” (Matter of Hennessy v. Gorman, 58 N.Y.2d 806, 807 ; see Matter of Carpenter v. Corcoran, 75 AD3d 1110, 1111 , lv denied 15 NY3d 712  ), the proceeding was properly dismissed. Clearly, respondent has no authority to vacate the judgment of conviction (see Matter of Reed v. Travis, 19 AD3d 829, 830 , lv denied 5 NY3d 708  ), and such challenges must be made by directly appealing the judgment of conviction (see CPL 450.10; 450.60; 470.15; Matter of Carpenter v. Corcoran, 75 AD3d at 1111). Here, petitioner had a full opportunity to challenge the judgment of conviction on direct appeal and was unsuccessful (People v. Rodriguez, 32 AD3d 1203 , lv denied 8 NY3d 849  ), and “there is no ground upon which that judgment may be collaterally attacked by way of a proceeding pursuant to CPLR article 78” (Matter of Garcha v. City Ct. [City of Beacon], 39 AD3d 645, 646  ).
Rose, J.P., Stein, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger
Clerk of the Court
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