Johnson v. Fischer

• Decision Date: 14 March 2013
• Citation: 104 A.D.3d 1004,2013 N.Y. Slip Op. 01587,960 N.Y.S.2d 559
• Parties: In the Matter of Melvin JOHNSON, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1004

960 N.Y.S.2d 559

2013 N.Y. Slip Op. 01587

In the Matter of Melvin JOHNSON, Appellant,

v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

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

March 14, 2013.

Melvin Johnson, Alden, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.

Before: MERCURE, J.P., ROSE, SPAIN and GARRY, JJ.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered February 1, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondent to notify the sentencing court that he was erroneously sentenced.

In 1995, petitioner was sentenced, as a persistent felony offender, to four concurrent prison terms of 25 years to life. In 2010, he requested that respondent, pursuant to Correction Law § 601–a, notify the sentencing court that he had been erroneously sentenced as a persistent felony offender. Respondent denied the request, based upon his determination that petitioner had not demonstrated that he was sentencedin error.¹ Thereafter, petitioner commenced this CPLR article 78 proceeding, in the nature of mandamus, seeking to compel respondent to make the requested notification. Supreme Court dismissed the petition based upon the principle of collateral estoppel and petitioner now appeals.

We affirm, albeit on different grounds. “The writ of mandamusis 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 [2011],lv. denied18 N.Y.3d 802, 2011 WL 6350552 [2011] [citations omitted]; see Matter of Morrison v. Hynes, 82 A.D.3d 772, 772, 917 N.Y.S.2d 908 [2011] ). Clearly, “ [t]he act sought to be compelled must be ministerial, nondiscretionary and nonjudgmental” ( Matter of Brown v. New York State Dept. of Social Servs., 106 A.D.2d 740, 741, 484 N.Y.S.2d 164 [1984],lv. denied65 N.Y.2d 604, 493 N.Y.S.2d 1026, 482 N.E.2d 1229 [1985];accord Matter of New York Civ. Liberties Union v. State of New York, 3 A.D.3d 811, 814, 771 N.Y.S.2d 563 [2004],affd.4 N.Y.3d 175, 791 N.Y.S.2d 507, 824 N.E.2d 947 [2005] ). Pursuant to Correction Law § 601–a, respondent has a duty to inform the sentencing court “[w]henever it shall appear to the satisfaction of [respondent] based upon facts submitted on behalf of a person sentenced and confined in a state prison, that any such person has been erroneously sentenced.” Accordingly, inasmuch as the initial determination of whether notification pursuant to Correction Law § 601—a is entrusted to respondent's discretion and judgment—i.e., respondent must determine whether an erroneous sentence has been demonstrated—mandamus does not lie ( see generally Matter of New York Civ. Liberties Union v. State of New York, 4 N.Y.3d 175, 184, 791 N.Y.S.2d 507, 824 N.E.2d 947 [2005];Matter of Glenman Indus. & Commercial Contr. Corp. v....