| Matter of McTootle v Rice |
| 2009 NY Slip Op 02607 [60 AD3d 1068] |
| March 31, 2009 |
| Appellate Division, Second Department |
| In the Matter of Roschette R. McTootle,Appellant, v Kathleen M. Rice, Respondent. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Jason P. Weinstein of counsel),respondent pro se.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel KathleenM. Rice, the District Attorney of Nassau County, to prosecute an alleged crime, the petitionerappeals from a judgment of the Supreme Court, Nassau County (Mahon, J.), entered October 3,2007, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
It is well settled that the decision whether to prosecute is entrusted to the sole discretion ofthe District Attorney (see Matter of Nieblas v Kings County Dist. Attorney, 209 AD2d703 [1994]; Matter of Hynes v Demarest, 202 AD2d 669 [1994]; see also People vDi Falco, 44 NY2d 482 [1978]). Mandamus cannot be used to compel a purely discretionaryact by a public official (see Matter of Mullen v Axelrod, 74 NY2d 580 [1989];Matter of Milek v Town of Hempstead, 294 AD2d 440 [2002]). Accordingly, thedismissal of the proceeding was proper.[*2]
The petitioner's remaining contentions are raised for thefirst time on appeal, and are thus not properly before this Court. Skelos, J.P., Santucci, Balkinand Chambers, JJ., concur.