Whitehead v. Vizzie

• Decision Date: 25 January 1996
• Citation: 637 N.Y.S.2d 227,223 A.D.2d 938
• Parties: In the Matter of Timothy WHITEHEAD, Petitioner, v. Guy VIZZIE, as Director of the Greene County Probation Department, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 227

637 N.Y.S.2d 227

223 A.D.2d 938

In the Matter of Timothy WHITEHEAD, Petitioner, v. Guy VIZZIE, as Director of the Greene County Probation Department, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Jan. 25, 1996.

Greg D. Lubow, Public Defender, Catskill, for petitioner.

Dennis C. Vacco, Attorney General (Patrick Barnett-Mulligan, of counsel), Albany, for James J. Battisti, respondent.

Before CARDONA, P.J., and MIKOLL, CREW, CASEY and SPAIN, JJ.

CREW, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] ) to prohibit respondent Director of the Greene County Probation Department from prosecuting petitioner on a pending violation of probation complaint.

In July 1993, while serving a term of probation for a prior felony conviction, petitioner was charged with the crimes of assault in the third degree and petit larceny. Petitioner was thereafter charged with the crimes of petit larceny and criminal possession of stolen property. Following plea negotiations, petitioner pleaded guilty in Justice Court to assault in the third degree in satisfaction of all charges pending against him for which he was promised a sentence of 89 days of intermittent incarceration. Additionally, he was assured by the Assistant District Attorney that a violation of probation complaint would not be filed as the result of his plea.

Following defendant's plea but prior to sentencing, a Greene County probation officer filed a violation of probation complaint against petitioner in County Court resulting in his arrest. Petitioner then commenced a habeas corpus proceeding in County Court. Following dismissal of that proceeding, petitioner commenced the instant CPLR article 78 proceeding seeking to prohibit prosecution of the revocation proceedings.

Prohibition is an extraordinary remedy that may not be invoked where an adequate remedy at law is available (see, 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). Petitioner's remedy here is an appeal to this court from County Court's dismissal of his habeas corpus petition, and the instant proceeding is not available as a means to obtaining an expedited appeal (see, Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 437, 318 N.Y.S.2d 705, 267 N.E.2d 452, cert. denied 404 U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 50).

ADJUDGED that the petition is dismissed, without costs.

CARDONA, P.J., and MIKOLL, CASEY and S...