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In the Matter of Johnathan v. Harry J. Corbitt

State of New York Supreme Court, Appellate Division Third Judicial Department


September 22, 2011

IN THE MATTER OF JOHNATHAN JOHNSON, APPELLANT,
v.
HARRY J. CORBITT, AS SUPERINTENDENT OF THE NEW YORK STATE POLICE, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Zwack, J.), entered November 3, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted certain respondents' motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: July 27, 2011

Before: Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ.

Petitioner, a prison inmate, was served with a misbehavior report in March 2008, in which he was alleged to have thrown urine in the face of a correction officer. As a result, the officer filed criminal charges and testified before a grand jury, after which petitioner was indicted on the charge of aggravated harassment of an employee by an inmate. Ultimately, respondent Franklin County 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 District Attorney requesting that he press criminal charges against the officer. Petitioner also sent letters to respondent Commissioner of Correctional Services, and respondent Inspector General of the Department of Correctional Services, requesting that appropriate action be taken. Thereafter, in July 2010, petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to arrest and prosecute several correction officers for filing false police reports and falsifying business records and reports. The Commissioner, Inspector General and respondent Superintendent of State Police moved to dismiss 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 the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought (see Matter of Morrison v Hynes, 82 AD3d 772, 772-773 [2011]; Matter of Barnwell v Breslin, 46 AD3d 990, 991 [2007]). Inasmuch as the decision whether to prosecute a particular suspect is entrusted to the unfettered discretion of the District Attorney, mandamus does not lie (see Matter of McTootle v Rice, 60 AD3d 1068, 1068 [2009], lv denied 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 or without merit.

Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110922

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