| Matter of Echevarria v Marks |
| 2008 NY Slip Op 10377 [57 AD3d 1479] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Danny Echevarria, Petitioner, v Patricia D. Marks,Monroe County Court Judge, Respondent. |
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Proceeding pursuant to CPLR article 78 [initiated in the Appellate Division of the Supreme Courtin the Fourth Judicial Department pursuant to CPLR 506 (b) (1)] seeking to prohibit respondent fromproceeding with resentencing or other proceedings with respect to Monroe County indictment No.98-817.
It is hereby ordered that the petition is unanimously dismissed without costs.
Memorandum: Petitioner commenced this original CPLR article 78 proceeding seeking to prohibitrespondent from proceeding with resentencing or any other proceedings with respect to a specifiedindictment. The record establishes that in March 1999 petitioner was sentenced to a determinate termof incarceration of five years along with two lesser indeterminate sentences after pleading guilty underthat indictment to, inter alia, rape in the first degree. Respondent failed to advise petitioner at the time ofsentencing of the mandatory period of postrelease supervision and, upon his subsequent release fromincarceration, petitioner was advised that he was subject to a five-year period of postreleasesupervision that had been administratively imposed by the Department of Correctional Services(DOCS). Following the decisions of the Court of Appeals in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d358 [2008]) and People v Sparber(10 NY3d 457 [2008]), DOCS requested that respondent calendar the matter in order to "allowthe parties to be heard on the question of whether to resentence [petitioner]" in light of those decisions.Respondent scheduled the matter "for consideration of whether [petitioner] should be re-sentenced."Thereafter, petitioner commenced this proceeding alleging, inter alia, that resentencing would violate theprohibition against double jeopardy.
We conclude that the petition must be dismissed. "[T]he extraordinary remedy of prohibition liesonly where there is a clear legal right, and only when a court (if a court is involved) acts or threatens toact either without jurisdiction or in excess of its authorized powers in a proceeding over which it hasjurisdiction" (Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]; see Garner, 10NY3d at 361-362). Prohibition, however, does not lie " 'even if there has been an excess of jurisdictionor power . . . if [*2]there is available an adequate remedyat law, of which appeal is but one' " (Matterof Patel v Breslin, 45 AD3d 1240, 1241 [2007], lv denied 10 NY3d 704 [2008];see Matter of Jacobs v Altman, 69 NY2d 733, 735 [1987]; Matter of Price v Rath,177 AD2d 1057 [1991], lv denied 79 NY2d 758 [1992]). In view of our determination, wedo not address the merits of the petition. Present—Hurlbutt, J.P., Martoche, Fahey and Gorski,JJ.