FIGGINS v. HENDRICKS

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

Matter of Andrew FIGGINS, Petitioner-Appellant, v. James L. HENDRICKS, Chief Clerk, Supreme Court, Seventh Judicial District, and Michael C. Green, Monroe County District Attorney, Respondents-Respondents.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Petitioner-Appellant. Eliot Spitzer, Attorney General, Albany (Denise A. Hartman of Counsel), for Respondent-Respondent James L. Hendricks, Chief Clerk, Supreme Court, Seventh Judicial District. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), Respondent-Respondent Pro Se.

 Supreme Court properly dismissed the petition pursuant to CPLR article 78 seeking, inter alia, to prohibit respondent Chief Clerk of Supreme Court, Seventh Judicial District, from amending petitioner's certificate of conviction to reflect that petitioner was in fact convicted of attempted burglary in the second degree rather than burglary in the second degree.   Even assuming, arguendo, that a writ of prohibition is available under the circumstances presented here, we conclude that the court did not abuse its discretion in dismissing the petition (see generally Matter of Rush v. Mordue, 68 N.Y.2d 348, 354, 509 N.Y.S.2d 493, 502 N.E.2d 170;  Matter of Forte v. Supreme Ct. of State of N.Y., 48 N.Y.2d 179, 185, 422 N.Y.S.2d 26, 397 N.E.2d 717).   In deciding whether to issue a writ of prohibition, “the reviewing court may weigh factors such as the gravity of the harm caused by the unauthorized act, whether the harm may be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity, and whether prohibition would furnish a more complete and efficacious remedy even when other methods of redress are technically available” (Matter of Brown v. Appelman, 241 A.D.2d 279, 283, 672 N.Y.S.2d 373;  see Rush, 68 N.Y.2d at 354, 509 N.Y.S.2d 493, 502 N.E.2d 170).   It does not appear on the record before us that petitioner sustained any harm, and we thus conclude that petitioner failed to establish the requisite “clear legal right” to the relief he seeks (Matter of Alomari v. Pietruszka, 298 A.D.2d 949, 949, 748 N.Y.S.2d 104, appeal dismissed and lv. denied 99 N.Y.2d 566, 755 N.Y.S.2d 702, 785 N.E.2d 723;  see generally Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351).

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

MEMORANDUM: