Soto v. Tekulsky

• Court: New York Supreme Court — Appellate Division
• Citation: Soto v. Tekulsky, 2025 NY Slip Op 07390, 2023-03416 (N.Y. App. Div. Dec 31, 2025)
• Docket Number: 2023-03416
• Decision Date: 31 December 2025
• Parties: In the Matter of Julio Fredy Polanco Soto, appellant, v. Steven Tekulsky, etc., et al., respondents.

2025 NY Slip Op 07390

In the Matter of Julio Fredy Polanco Soto, appellant, v. Steven Tekulsky, etc., et al., respondents.

2023-03416

Supreme Court of New York, Second Department

December 31, 2025

Patricia Weiss, Sag Harbor, NY, for appellant.

Sokoloff Stern, LLP, Carle Place, NY (Steven C. Stern and Sanjana Biswas of counsel), for respondent Steven Tekulsky.

Christopher J. Clayton, County Attorney, Hauppauge, NY (Marc A. Lindemann of counsel), for respondents Thomas Branco and County of Suffolk.

Raymond A. Tierney, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel), respondent pro se.

BETSY BARROS, J.P. LINDA CHRISTOPHER LILLIAN WAN DONNA-MARIE E GOLIA, JJ.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondents/defendants from imposing as a condition of restoring the petitioner/plaintiff's probation, an additional 139 days of probation, by failing to credit the petitioner/plaintiff with the period from June 18, 2021, through November 3, 2021, and action for a judgment declaring that failing to credit him with that period was unlawful and for an award of attorneys' fees, costs, and disbursements, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (George Nolan, J.), dated March 28, 2023. The order and judgment granted the separate motions of the respondents/defendants Thomas Branco and County of Suffolk and the respondent/defendant Steven Tekulsky pursuant to CPLR 3211(a) to dismiss the petition/complaint, denied the petition, and dismissed the proceeding/action.

ORDERED that the order and judgment is affirmed, with one bill of costs to the respondents/defendants appearing separately and filing separate briefs.

On September 17, 2009, the petitioner/plaintiff (hereinafter the petitioner) was sentenced to a term of probation of three years following his conviction, upon his plea of guilty, of driving while intoxicated and driving without a valid license. In November 2010, the petitioner returned to his home country of Peru, did not report to the probation department on January 6, 2011, February 8, 2011, February 22, 2011, March 8, 2011, and March 22, 2011, and did not inform the probation department of where he was. His failure to report and to make his whereabouts known were attested to by his probation officer. In April 2011, the Justice Court, Town of East Hampton, declared the petitioner delinquent, and a warrant was issued for his arrest.

On May 26, 2021, the petitioner and his counsel appeared before the Justice Court. On November 3, 2021, the petitioner pleaded guilty to violation of probation, with a promised sentence to restoration to probation with "no credit for the time he was in violation," which included the period from June 18, 2021, through November 3, 2021, and an amended judgment was issued to that effect.

In March 2022, the petitioner commenced the instant hybrid proceeding pursuant to CPLR article 78, among other things, to prohibit the respondents/defendants from imposing as a condition of restoring the petitioner's probation, an additional 139 days of probation, by failing to credit him with the period from June 18, 2021, through November 3, 2021, and action for a judgment declaring that failing to credit him with that period was unlawful and for an award of attorneys' fees, costs, and disbursements.

The order and judgment dated March 28, 2023, appealed from granted the separate motions of the respondents/defendants Thomas Branco and County of Suffolk and the respondent/defendant Steven Tekulsky pursuant to CPLR 3211(a) to dismiss the petition/complaint, denied the petition, and dismissed the proceeding/action on the ground that errors in criminal proceedings are reviewable on direct appeal from a judgment of conviction. Thereafter, the amended judgment rendered November 3, 2021, was affirmed by the Appellate Term, Second Department (see People v Soto, 79 Misc.3d 130 [A], 2023 NY Slip Op 50784[U]). The petitioner successfully completed his term of probation and was released from supervision.

The petitioner's contentions were reviewable on direct appeal from the amended judgment. As noted by the Appellate Term Second Department, on direct appeal, the Justice Court had subject matter jurisdiction to render the amended judgment, since the violation of probation petition "'is not the foundation of the court's jurisdiction. It does not commence a new proceeding, but is simply a new step in an existing one.' Therefore, contrary to [the petitioner's]...