Roman v. Clyne

Mugglin, J.

Appeal from a judgment of the Supreme Court (Cannizzaro, J.), entered November 6, 2003 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondents to dismiss the indictment against him.

Finding no proof that petitioner complied with the requirements of CPL 190.50 (5) (a), the County Court of Albany County denied his motion to dismiss the indictment. Dissatisfied with that decision, petitioner commenced this CPLR article 78 proceeding in which he sought an order compelling the dismissal of the indictment. Supreme Court dismissed the petition and petitioner appeals. While styled a petition for mandamus to compel, we agree with Supreme Court that petitioner was seeking an order prohibiting his prosecution.

Initially, it would not now be possible to prohibit this completed prosecution (see Matter of Collins v Lamont, 273 AD2d 528, 530 [2000]), so the matter must be dismissed as moot. Moreover, petitioner may not obtain CPLR article 78 collateral review of County Court’s decision (see id. at 529-530), and we have reviewed County Court’s decision on defendant’s direct appeal and found no error (see People v Roman, 19 AD3d 739, 740-741 [2005], lv denied 5 NY3d 809 [2005]).

Mercure, J.E, Crew III, Spain and Rose, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.