Dinsio v. Supreme Court

• Citation: 2015 N.Y. Slip Op. 01020,3 N.Y.S.3d 494,125 A.D.3d 1313
• Parties: In the Matter of Amil DINSIO, Petitioner, v. SUPREME COURT, Appellate Division, Third Judicial Department, Respondent. (Proceeding No. 1.).
• Decision Date: 06 February 2015
• Court: New York Supreme Court Appellate Division

125 A.D.3d 1313

3 N.Y.S.3d 494

2015 N.Y. Slip Op. 01020

In the Matter of Amil DINSIO, Petitioner

v.SUPREME COURT, Appellate Division, Third Judicial Department, Respondent. (Proceeding No. 1.).

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

Filed Feb. 6, 2015.

Amil Dinsio, Petitioner Pro Se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, and WHALEN, JJ.

OpinionMEMORANDUM:

In 1997, petitioner was convicted upon a jury verdict of, inter alia, robbery in the first degree and, on appeal, the judgment was modified in part and otherwise affirmed (People v. Dinsio, 286 A.D.2d 517, 519, 729 N.Y.S.2d 208, lv. denied 97 N.Y.2d 703, 739 N.Y.S.2d 104, 765 N.E.2d 307, cert. denied 536 U.S. 942, 122 S.Ct. 2626, 153 L.Ed.2d 808 ). Petitioner thereafter filed several motions pursuant to CPL article 440 seeking to vacate the judgment on various grounds, including the alleged destruction and fabrication of evidence. County Court denied the motions, and respondent denied petitioner's application for leave to appeal therefrom (see CPL 450.15[1] ; 460.15).

Petitioner commenced these original proceedings pursuant to CPLR article 78 in the nature of mandamus. In proceeding No. 1, petitioner seeks to compel respondent to determine the issues raised in his CPL article 440 motions or, alternatively, to remit the motions to County Court for purposes of an evidentiary hearing on the grounds raised. It is well established that “[t]he writ of mandamus is an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought” (Matter of Johnson v. Corbitt, 87 A.D.3d 1214, 1215, 929 N.Y.S.2d 783, lv. denied 18 N.Y.3d 802, 2011 WL 6350552 ; see Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542 ; 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 ). Trial courts are vested with the discretion to grant or deny a CPL article 440 motion, either with or without a hearing (see CPL 440.10[1] ; People v. Saxton, 93 A.D.3d 1077, 1078, 941 N.Y.S.2d 308, lv. denied 18 N.Y.3d 998, 945 N.Y.S.2d 652, 968 N.E.2d 1008 ; People v. Boyd, 256 A.D.2d 170, 170, 683 N.Y.S.2d 226, lv. denied 93 N.Y.2d 850, 688 N.Y.S.2d 498, 710 N.E.2d 1097 ), and the denial of such a motion is appealable only by leave of an intermediate appellate court (see CPL 450.15, 460.15 ; People v. Jermain, 56 A.D.3d 1165, 1166, 867 N.Y.S.2d 326, lv. denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445 ). Thus, “inasmuch as the [decision whether to grant or deny such a motion] is entrusted to respondent's discretion and judgment ... [,] mandamus does not lie” (Matter of Johnson v. Fischer, 104 A.D.3d 1004, 1005, 960 N.Y.S.2d 559 ). We therefore dismiss the petition in proceeding No. 1.

In proceeding No. 2, petitioner seeks to compel respondent to “process” his petition in proceeding No. 1 or, in the alternative, to transfer the matter to another court. Because respondent subsequently accepted petitioner's papers in proceeding No. 1 for filing and transferred the proceeding to this Court for determination, we conclude that proceeding No. 2 has been rendered academic and the petition therein is therefore dismissed (see e.g. Matter of Mitchell v. Knipel, 121 A.D.3d 792, 792, 994 N.Y.S.2d 158, lv....