IN RE: OTES G. RODRIGUEZ

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

IN RE: OTES G. RODRIGUEZ, Appellant, v. THOMAS LAVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.

515480

Decided: December 26, 2013

Before:  Rose, J.P., Stein, McCarthy and Garry, JJ. Otes G. Rodriguez, Dannemora, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for 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 [1983];  see Matter of Carpenter v. Corcoran, 75 AD3d 1110, 1111 [2010], lv denied 15 NY3d 712 [2010] ), 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 [2005], lv denied 5 NY3d 708 [2005] ), and such challenges must be made by directly appealing the judgment of conviction (see CPL 450.10[1];  450.60[3];  470.15[1];  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 [2006], lv denied 8 NY3d 849 [2007] ), 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 [2007] ).

Rose, J.P., Stein, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

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