| Matter of Johnson v Corbitt |
| 2011 NY Slip Op 06516 [87 AD3d 1214] |
| September 22, 2011 |
| Appellate Division, Third Department |
| In the Matter of Johnathan Johnson, Appellant, v Harry J. Corbitt,as Superintendent of the New York State Police, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for HarryJ. Corbitt and others, respondents. Derek P. Champagne, District Attorney, Malone (Joshua S. Vinciguerra, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for Derek P. Champagne,respondent.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered November 3, 2010 inAlbany County, which, in a proceeding pursuant to CPLR article 78, among other things, grantedcertain respondents' motion to dismiss the petition.
Petitioner, a prison inmate, was served with a misbehavior report in March 2008, in which hewas alleged to have thrown urine in the face of a correction officer. As a result, the officer filedcriminal charges and testified before a grand jury, after which petitioner was indicted on thecharge of aggravated harassment of an employee by an inmate. Ultimately, respondent FranklinCounty District Attorney declined to continue the prosecution. Shortly thereafter, petitioner,alleging that false criminal charges had been filed against him, sent a letter to the DistrictAttorney requesting that he press criminal charges against the officer. Petitioner also sent lettersto respondent Commissioner of Correctional Services, and respondent Inspector General of theDepartment of Correctional Services, requesting that appropriate action be taken. Thereafter, inJuly 2010, petitioner commenced this CPLR article 78 proceeding seeking to compel respondentsto arrest and prosecute several correction officers for filing false police [*2]reports and falsifying business records and reports. TheCommissioner, Inspector General and respondent Superintendent of State Police moved todismiss the petition for failure to state a cause of action and the District Attorney, in his answer,requested the same relief. Supreme Court dismissed the petition and petitioner now appeals.
We affirm. The writ of mandamus is an extraordinary remedy that lies only to compel theperformance of acts which are mandatory, not discretionary, and only when there is a clear legalright to the relief sought (see Matter ofMorrison v Hynes, 82 AD3d 772, 772-773 [2011]; Matter of Barnwell v Breslin, 46 AD3d 990, 991 [2007]). Inasmuchas the decision whether to prosecute a particular suspect is entrusted to the unfettered discretionof the District Attorney, mandamus does not lie (see Matter of McTootle v Rice, 60 AD3d 1068 [2009], lvdenied 13 NY3d 705 [2009]; Matter of Cantwell v Ryan, 309 AD2d 1042,1042-1043 [2003], affd 3 NY3d 626 [2004]).
Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.