| Matter of Johnson v Fischer |
| 2013 NY Slip Op 01587 [104 AD3d 1004] |
| March 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Melvin Johnson, Appellant, v BrianFischer, as Commissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Melkonian, J.), entered February 1,2012 in Albany County, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to compel respondent to notify the sentencing court that hewas erroneously sentenced.
In 1995, petitioner was sentenced, as a persistent felony offender, to four concurrentprison terms of 25 years to life. In 2010, he requested that respondent, pursuant toCorrection Law § 601-a, notify the sentencing court that he had been erroneouslysentenced as a persistent felony offender. Respondent denied the request, based upon hisdetermination that petitioner had not demonstrated that he was sentenced inerror.[FN*]Thereafter, petitioner commenced this CPLR article 78 proceeding, in the nature ofmandamus, seeking to compel respondent to make the requested notification. SupremeCourt dismissed the petition based upon the principle of collateral estoppel and petitionernow appeals.
We affirm, albeit on different grounds. "The writ of mandamus is an extraordinary[*2]remedy that lies only to compel the performance ofacts which are mandatory, not discretionary, and only when there is a clear legal right tothe relief sought" (Matter ofJohnson v Corbitt, 87 AD3d 1214, 1215 [2011], lv denied 18 NY3d 802[2011] [citations omitted]; seeMatter of Morrison v Hynes, 82 AD3d 772, 772 [2011]). Clearly, "[t]he actsought to be compelled must be ministerial, nondiscretionary and nonjudgmental"(Matter of Brown v New York State Dept. of Social Servs., 106 AD2d 740, 741[1984], lv denied 65 NY2d 604 [1985]; accord New York Civ. Liberties Union v State of New York, 3AD3d 811, 814 [2004], affd 4 NY3d 175 [2005]). Pursuant to Correction Law§ 601-a, respondent has a duty to inform the sentencing court "[w]henever it shallappear to the satisfaction of [respondent] based on facts submitted on behalf of a personsentenced and confined in a state prison, that any such person has been erroneouslysentenced." Accordingly, inasmuch as the initial determination of whether notificationpursuant to Correction Law § 601-a is entrusted to respondent's discretion andjudgment—i.e., respondent must determine whether an erroneous sentence hasbeen demonstrated—mandamus does not lie (see generally New York Civ.Liberties Union v State of New York, 4 NY3d 175, 184 [2005]; Matter of Glenman Indus. &Commercial Contr. Corp. v New York State Off. of the State Comptroller, 75 AD3d986, 989 [2010]; Matter of Coleman v Goord, 307 AD2d 462, 463 [2003]).We note, however, that claims that an imposed sentence was illegal, unauthorized orinvalid may be brought pursuant to CPL 440.20.
Mercure, J.P., Rose, Spain and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Petitioner also filed agrievance with the inmate grievance committee requesting the same relief, which wasdenied.