Coffee v. Argento

• Decision Date: 01 February 2019
• Docket Number: 13,OP 18–00645
• Citation: 169 A.D.3d 1354,91 N.Y.S.3d 741 (Mem)
• Parties: In the Matter of Shawn James COFFEE, Petitioner, v. Hon. Victoria M. ARGENTO, Acting Supreme Court Judge, Monroe County, Michael Dollinger, Esq., Assistant District Attorney, Monroe County, and Michael C. Lopez, Esq., Public Defender's Office, Monroe County, Respondents.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1354

91 N.Y.S.3d 741 (Mem)

In the Matter of Shawn James COFFEE, Petitioner,

v.Hon. Victoria M. ARGENTO, Acting Supreme Court Judge, Monroe County, Michael Dollinger, Esq., Assistant District Attorney, Monroe County, and Michael C. Lopez, Esq., Public Defender's Office, Monroe County, Respondents.

13

OP 18–00645

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

Entered: February 1, 2019

SHAWN JAMES COFFEE, PETITIONER PRO SE.

MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (MATTHEW D. BROWN OF COUNSEL), FOR RESPONDENTS MICHAEL DOLLINGER, ESQ., ASSISTANT DISTRICT ATTORNEY, MONROE COUNTY, AND MICHAEL C. LOPEZ, ESQ., PUBLIC DEFENDER'S OFFICE, MONROE COUNTY.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said petition is unanimously dismissed without costs.

Memorandum: In 2014, a judgment was rendered convicting petitioner upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ), and we affirmed that judgment on direct appeal ( People v. Coffee, 151 A.D.3d 1837, 58 N.Y.S.3d 777 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ). Petitioner now brings this original CPLR article 78 proceeding in the nature of prohibition seeking dismissal of the indictment on, inter alia, the ground that he was denied the right to appear and testify before the grand jury. The petition must be dismissed as time-barred because it was filed well beyond the four-month statute of limitations for a writ of prohibition (see CPLR 217[1] ; Matter of Holtzman v. Marrus, 74 N.Y.2d 865, 866, 547 N.Y.S.2d 829, 547 N.E.2d 84 [1989] ; see generally Matter of Doorley v. DeMarco , 106 A.D.3d 27, 33, 962 N.Y.S.2d 546 [4th Dept. 2013] ). In any event, a petitioner is not entitled to the extraordinary remedy of a writ of prohibition where, as here, there is "an adequate ‘ordinary’ remedy," i.e., a direct appeal ( Matter of Morgenthau v. Erlbaum , 59 N.Y.2d 143, 147, 464 N.Y.S.2d 392, 451 N.E.2d 150 [1983], cert. denied 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 [1983] ; see Matter of Dale v. Burns , 103 A.D.3d 1243, 1244–1245, 959 N.Y.S.2d 781 [4th Dept. 2013], appeal dismissed 21 N.Y.3d 968, 970 N.Y.S.2d 493, 992 N.E.2d 421 [2013] ; see generally Matter of O'Neill v. Beisheim , 39 N.Y.2d 924, 925, 386 N.Y.S.2d 576, 352 N.E.2d 880 [1976] ).