MATTER OF WILCOX v. Dwyer

New York Court of Appeals January 8, 1980

MATTER OF WILCOX v. Dwyer, 48 N.Y.2d 1003 (N.Y. 1980)

401 N.E.2d 908; 425 N.Y.S.2d 550; 1980 N.Y. LEXIS 2053

Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer Concur in Memorandum

Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the petition dismissed, without costs. The People may appeal from the sentence (CPL 450.20, subd 4; 450.30, subd 2). On the appeal they may argue that procedures prescribed by statute were not followed at the sentencing (People v Yanicelli, 33 NY2d 621, 40 NY2d 598). That would include a claim that the court improperly denied the People access to the presentencing report by misinterpreting CPL 390.50 (subd 2). In view of the fact that the issue may be raised on direct appeal, it was error for the Appellate Division to have entertained the application for article 78 relief in the nature of prohibition.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

*1005 Judgment reversed, etc.

Reference

Full Case Name: In the Matter of Charles J. Wilcox, as District Attorney of Rensselaer County, Respondent, v. M. Andrew Dwyer, Jr., as Judge of the County Court of Rensselaer County, Et Al., Appellants, and Clinton Saddlemire, Respondent
Cited By: 5 cases
Status: Published