In the Matter of Justo Richards v. Cuomo

CourtNew York Supreme Court Appellate Division
Citation930 N.Y.S.2d 500,2011 N.Y. Slip Op. 06965,88 A.D.3d 1043
PartiesIn the Matter of Justo RICHARDS, Appellant,v.Andrew CUOMO, as Attorney General of the State of New York, Respondent.
Decision Date06 October 2011

88 A.D.3d 1043
930 N.Y.S.2d 500
2011 N.Y. Slip Op. 06965

In the Matter of Justo RICHARDS, Appellant,
Andrew CUOMO, as Attorney General of the State of New York, Respondent.

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

Oct. 6, 2011.

Justo Richards, Malone, appellant pro se.Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.LAHTINEN, J.

[88 A.D.3d 1044] Appeal (transferred to this Court by order of the Court of Appeals) from a judgment of the Supreme Court (Feldstein, J.), entered October 22, 2010 in Franklin County, which, in a proceeding pursuant to CPLR article 78, sua sponte, dismissed the petition.

Petitioner, an inmate, was previously convicted of, among other things, robbery in the first degree ( People v. Richards, 118 A.D.2d 604, 499 N.Y.S.2d 209 [1986], lv. denied 67 N.Y.2d 1056, 504 N.Y.S.2d 1032, 495 N.E.2d 365 [1986] ) pursuant to a statutory provision he claims is unconstitutional. As relevant herein, petitioner attempted to commence this CPLR article 78 proceeding seeking a writ of prohibition solely against respondent, the Attorney General, so as to, among other things, bar the “unconstitutional policy and custom of applying the scope, sweep and range of the ... statute.” Supreme Court declined

[930 N.Y.S.2d 501]

to issue an order to show cause and dismissed the proceeding sua sponte, finding the verified petition to be deficient on its face. Petitioner's appeal from the court's judgment was originally filed in the Court of Appeals before being transferred to this Court.

We affirm. It is well settled that the extraordinary remedy of prohibition is only available where a “body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction” (CPLR 7803[2] ) and there is a clear legal right to such relief ( see Matter of Law Offs. of Andrew F. Capoccia v. Spitzer, 270 A.D.2d 643, 645, 704 N.Y.S.2d 356 [2000], lv. denied 95 N.Y.2d 755, 711 N.Y.S.2d 833, 733 N.E.2d 1102 [2000] ). While “[p]rohibition ... may be available against the Attorney–General when exercising or threatening to exercise an ultra vires prosecutorial function” ( Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276 [1997] ), it is clear from the verified petition that petitioner is making no claims of such a nature. Instead, he faults respondent's office for refusing to “enjoin the invalidity” of an allegedly unconstitutional statute and “expunge[ ]” his conviction. Under these...

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10 cases
  • Richards v. Heastie, 1:20-CV-1495 (BKS/CFH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 17, 2021
    ...has also set forth what appear to be similar arguments in at least one state court action. See, e.g., Richards v. Cuomo, 88 A.D. 1043, 930 N.Y.S.2d 500 (N.Y.App.Div. 2011). [3] It also appears plaintiff is contending that other state and federal courts are improperly applying the penal code......
  • In the Matter of The Claim of Maria Palermo v. Primo Coat Corp..
    • United States
    • New York Supreme Court Appellate Division
    • October 6, 2011
    ...that the claim is truly closed ( Matter of Bates v. Finger Lakes Truck Rental, 41 A.D.3d 957, 959, 839 N.Y.S.2d 234 [2007]; accord [88 A.D.3d 1043] Matter of Rathbun v. D'Ella Pontiac Buick GMC, Inc., 61 A.D.3d 1293, 1294, 878 N.Y.S.2d 480 [2009] ). Whether a case is truly closed is a factu......
  • Porter v. N.Y. State Elec.
    • United States
    • New York Supreme Court Appellate Division
    • January 23, 2014
    ...substantial evidence ( see Matter of Nanni v. Source Corp., 98 A.D.3d at 1226, 951 N.Y.S.2d 272; Matter of Palermo v. Primo Coat Corp., 88 A.D.3d at 1043, 930 N.Y.S.2d 109). Claimant continued to work prior to the surgery authorized by the Chair's April 27, 2011 order. Indeed, the April 27,......
  • Koziol v. Hood
    • United States
    • New York Supreme Court Appellate Division
    • February 23, 2012
    ...without or in excess of jurisdiction’ and there is a clear legal right to such relief” ( [940 N.Y.S.2d 176] Matter of Richards v. Cuomo, 88 A.D.3d 1043, 1044, 930 N.Y.S.2d 500 [2011], appeal dismissed 18 N.Y.3d 830, 938 N.Y.S.2d 834, 962 N.E.2d 255 [Dec. 13, 2011], quoting CPLR 7803[2]; see......
  • Request a trial to view additional results

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