Ruiz v. Goord

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Glenn S. Goord to eliminate the five-year term of post-release *867supervision from the petitioner’s sentence, and in the nature of prohibition to prohibit the respondent Randall Eng, a Justice of the Supreme Court, Queens County, from resentencing the petitioner. Motion by the respondents, in effect, to dismiss the proceeding and to vacate an interim stay granted by this Court on December 5, 2006. Cross motion by the petitioner to amend the petition to name Richard A. Brown, District Attorney, Queens County, as an additional respondent.

Ordered that the respondents’ motion, in effect, to dismiss the proceeding is granted; and it is further,

Ordered that the petitioner’s cross motion is denied; and it is further,

Adjudged that the proceeding is dismissed, without costs or disbursements.

This Court does not have subject matter jurisdiction to entertain this proceeding (see CPLR 7804 [b]; 506 [b]; Matter of Nolan v Lungen, 61 NY2d 788, 790; Matter of New York State Rifle & Pistol Assn. v City of Mount Vernon, 148 AD2d 616, 618 [1989]). To the extent that the petition seeks a writ of prohibition against the respondent Randall Eng, a Justice of the Supreme Court, Queens County, the petition is purely hypothetical, as Justice Eng is not about to, nor has he threatened to, resentence the petitioner (see CPLR 7803 [2]). With respect to the respondent Glenn S. Goord, we note that a proceeding pursuant to CPLR article 78 against that respondent must be brought in the Supreme Court (see CPLR 506). Crane, J.P., Krausman, Goldstein and Dillon, JJ., concur.