IN RE: ROBERT REED

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department.

IN RE: ROBERT REED, PETITIONER–APPELLANT, v. ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION AND CHRISTOPHER MOSS, CHEMUNG COUNTY SHERIFF, RESPONDENTS–RESPONDENTS. (APPEAL NO. 2.) ROBERT REED, PETITIONER–APPELLANT

CA 15–00035

Decided: November 20, 2015

PRESENT:  SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT–RESPONDENT ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY

MEMORANDUM AND ORDER

PRO SE.

SUPERVISION.

SHERIFF.

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

Memorandum:  Petitioner, an inmate in the custody of respondent New York State Department of Corrections and Community Supervision (DOCCS), commenced this CPLR article 78 proceeding challenging the computation of his sentence.  Petitioner seeks, inter alia, exclusion of the sentence imposed by Niagara County Court upon his conviction of two counts of rape in the first degree (People v. Reed, 212 A.D.2d 962, lv denied 86 N.Y.2d 739), contending that he was erroneously sentenced for crimes of which he was allegedly acquitted.  We agree with petitioner that Supreme Court erred in sua sponte joining the Chemung County Sheriff as a party without petitioner's consent (see New Medico Assoc. v Empire Blue Cross & Blue Shield, 267 A.D.2d 757, 758–759), and that the motion of DOCCS to dismiss the petition was untimely (see CPLR 2103[b][2] ).  We nevertheless conclude that the court properly considered the merits of the untimely motion (see Mohen v. Stepanov, 59 AD3d 502, 504), and declined to grant petitioner relief based upon the failure of DOCCS to file its motion in a timely manner (see Matter of Posada v New York State Dept. of Health, 75 AD3d 880, 884, lv denied 15 NY3d 712).  The court also properly dismissed the petition.  “[A] proceeding pursuant to CPLR article 78 generally does not lie to review errors claimed to have occurred in a criminal proceeding or to challenge a judgment of conviction rendered by a criminal court” (Matter of Garcha v. City Ct. [City of Beacon], 39 AD3d 645, 646;  see Matter of Hennessy v. Gorman, 58 N.Y.2d 806, 807).

Frances E. Cafarell

Clerk of the Court