SIMS v. SPERRAZZA III

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Philip R. SIMS, Petitioner, v. Sara Sheldon SPERRAZZA, Niagara County Court Judge, and Matthew J. Murphy, III, Niagara County District Attorney, Respondents.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Amigone, Sanchez, Mattrey & Marshall, LLP, Buffalo (Philip M. Marshall of Counsel), for Petitioner. Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of Counsel), Respondent Pro Se.

 Petitioner commenced this original proceeding pursuant to CPLR article 78 seeking to annul a determination of respondent Sara Sheldon Sperrazza, Niagara County Court Judge, that petitioner is a level two risk under the Sex Offender Registration Act (Correction Law § 168 et seq.).   We conclude that the amended petition must be dismissed.

 A writ of prohibition is an improper vehicle for granting petitioner the relief he is seeking.  “Prohibition lies where there is a clear legal right and where a court acts without or in excess of jurisdiction over the subject matter, but does not lie, even if there has been an excess of jurisdiction, if there is available an adequate remedy, by way of appeal or otherwise” (Matter of Molea v. Marasco, 64 N.Y.2d 718, 720, 485 N.Y.S.2d 738, 475 N.E.2d 109;  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 502 N.E.2d 170;  Matter of Van Wie v. Kirk, 244 A.D.2d 13, 24, 675 N.Y.S.2d 469;  cf. Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 359, 653 N.Y.S.2d 237, 675 N.E.2d 1189).   Here, there exists an adequate remedy by way of an appeal of County Court's order determining petitioner's risk level (see Correction Law § 168-d [3] ).

It is hereby ORDERED that said amended petition be and the same hereby is unanimously dismissed without costs.

MEMORANDUM: