IN RE: RAPHAEL S. (Anonymous)

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

IN RE: RAPHAEL S. (Anonymous), Petitioner, v. John M. LEVENTHAL, etc., et al., Respondents.

Decided: January 26, 1998

Before BRACKEN, J.P., and SULLIVAN, SANTUCCI and LUCIANO, JJ. Dennis R. Murphy, New York City (Michele Maxian, of counsel), for petitioner. Dennis C. Vacco, Attorney General, New York City (Alfred A. Delicata, of counsel), for respondents John M. Leventhal and Edward R. Hallman.

Proceeding pursuant to CPLR article 78 to prohibit the respondents from enforcing a risk level determination of the respondent John M. Leventhal, dated May 13, 1997, which classified the petitioner under the Sex Offender Registration Act (Correction Law § 168 et seq.), and for related relief.

Cross motion by the respondents John M. Leventhal and Edward R. Hallman to dismiss the petition.

ORDERED that the cross motion is granted;  and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

 The petitioner is a sex offender within the meaning of Correction Law § 168-a(1) who was not definitively released from parole supervision at the time that the Sex Offender Registration Act (see, Correction Law § 168 et seq. [L.1995, ch. 192] ) took effect.   His classification as a risk level three sex offender by the respondent John M. Leventhal, a Justice of the Supreme Court, Kings County, was not an act which can in any sense be considered as beyond the court's jurisdiction (see generally, People v. Nieves, 172 Misc.2d 346, 659 N.Y.S.2d 972).  Therefore, the writ of prohibition does not lie.   The absence of any right to appeal the determination (see, People v. Stevens, 235 A.D.2d 440, 652 N.Y.S.2d 305, lv. granted 90 N.Y.2d 864, 661 N.Y.S.2d 191, 683 N.E.2d 1065;  People v. Rodriguez, 240 A.D.2d 351, 660 N.Y.S.2d 714 ) does not compel the conclusion that relief is available by way of application for a writ of prohibition (e.g., Matter of Brown v. Browne, 187 A.D.2d 580, 590 N.Y.S.2d 131).   To hold otherwise would result in this “ extraordinary” writ becoming, instead, routine in sex-crime cases.   We disagree with the result in People v. Cash, 242 A.D.2d 976, 664 N.Y.S.2d 696 to the extent that it holds that prohibition is available under these or similar circumstances.


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