SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1278 

OP 13-00015 

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ. 

 

IN THE MATTER OF STEVEN WISNIEWSKI, 

PETITIONER-PLAINTIFF, 

V MEMORANDUM AND ORDER

HON. JOHN MICHALSKI, ERIE COUNTY SUPREME COURT 

JUSTICE, FRANK A. SEDITA, III, ERIE COUNTY 

DISTRICT ATTORNEY, ERIC T. SCHNEIDERMAN, ATTORNEY 

GENERAL, BRIAN FISCHER, COMMISSIONER, NEW YORK 

STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 

SUPERVISION, ANDREA W. EVANS, CHAIRWOMAN, NEW 

YORK STATE BOARD OF PAROLE, AND ERIE COUNTY 

DEPARTMENT OF PROBATION, RESPONDENTS-DEFENDANTS. 

 

STEVEN WISNIEWSKI, PETITIONER-PLAINTIFF PRO SE. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO, RESPONDENT-DEFENDANT

PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF

COUNSEL), FOR RESPONDENT-DEFENDANT PRO SE, AND FOR RESPONDENTSDEFENDANTS ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, BRIAN FISCHER,

COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY

SUPERVISION, AND ANDREA W. EVANS, CHAIRWOMAN, NEW YORK STATE BOARD OF

PAROLE. 

JOHN W. MCCONNELL, OFFICE OF COURT ADMINISTRATION, NEW YORK CITY, FOR

RESPONDENT-DEFENDANT HON. JOHN MICHALSKI, ERIE COUNTY SUPREME COURT

JUSTICE. 

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (MICHAEL J. PACIFICO OF

COUNSEL), FOR RESPONDENT-DEFENDANT ERIE COUNTY DEPARTMENT OF

PROBATION. 

 

Proceeding/action pursuant to, inter alia, CPLR article 78, CPLR

3001 and CPLR 7001 (initiated in the Appellate Division of the Supreme

Court in the Fourth Judicial Department pursuant to CPLR 506 [b] [1])

to, among other things, vacate the determination of the New York State

Board of Parole. The determination denied the release of petitionerplaintiff to parole supervision. 

It is hereby ORDERED that said amended petition/complaint is

unanimously dismissed without costs.
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OP 13-00015 

Memorandum: Petitioner-plaintiff (petitioner) commenced this

proceeding/action pursuant to, inter alia, CPLR article 78, CPLR 3001,

and CPLR 7001 seeking various forms of relief, including his immediate

release from prison, in connection with a criminal conviction. We

agree with respondents-defendants that the amended petition/complaint

should be dismissed in its entirety. It is well settled that “[a]

CPLR article 78 proceeding is not the appropriate method to seek

review of issues that could be raised on direct appeal” or by a motion

pursuant to CPL article 440 (Matter of Tyler v Forma, 231 AD2d 891,

891; see People v ex rel. Smith v Graham, 109 AD3d 1113, 1113). Here,

to the extent that petitioner contends that Supreme Court abused its

discretion in failing to adhere to the plea agreement, that his pleas

of guilty and waiver of the right to appeal were involuntary, and that

the People committed a Brady violation, we conclude that those

contentions could have been raised by a direct appeal from the

judgment of conviction or by way of a CPL article 440 motion and thus

are not properly the subject of a CPLR article 78 petition (see Smith,

109 AD3d at 1113; Matter of Aarismaa v Bender, 108 AD3d 1203, 1204).

With respect to petitioner’s claim for relief in the nature of

mandamus compelling Supreme Court to correct the uniform sentence and

commitment and to render a decision on petitioner’s pending CPL

article 440 motion, we conclude that “the extraordinary remedy of

mandamus does not lie . . . because petitioner has failed to establish

a clear legal right to the relief sought or that the relief sought

involves the performance of a purely ministerial act” (Matter of

Platten v Dadd, 38 AD3d 1216, 1217, lv denied 9 NY3d 802). The

determination of a postjudgment motion is not a “ministerial act” and,

further, petitioner has not demonstrated a “clear legal right to the

relief sought” (Matter of Uccio v Silber, 55 AD3d 615, 616; see Matter

of Legal Aid Socy. of Sullivan County, Inc. v Scheinman, 53 NY2d 12,

16). Petitioner likewise failed to establish a clear legal right to

“correction” of the uniform sentence and commitment (see generally

Matter of Dolan v Efman, 94 AD3d 1116, 1116, appeal dismissed 19 NY3d

937; Uccio, 55 AD3d at 616) and, in any event, even assuming,

arguendo, that the uniform sentence and commitment is inaccurate, we

conclude that petitioner has an adequate remedy at law, thus rendering

mandamus relief inappropriate (see Matter of State of New York v King,

36 NY2d 59, 62).

Petitioner’s contention that the presentence investigation report

(PSR) prepared in connection with his 2009 conviction and the 2009

sentencing minutes should be expunged from his institutional record is

not properly before us inasmuch as he failed to exhaust available

administrative remedies with respect to that contention (see Matter of

Watkins v Annucci, 305 AD2d 889, 890; cf. Matter of Brown v Goord, 19

AD3d 773, 774). To the extent that petitioner challenges the

inclusion of certain information in the 2009 PSR, that challenge is

likewise not properly before us inasmuch as it “should have been

raised before the sentencing court, prior to sentencing” (Matter of

Champion v Belmont, 12 AD3d 1152, 1152; see Matter of Carter v Evans,

81 AD3d 1031, 1031-1032, lv denied 16 NY3d 712). In any event,

petitioner has made no showing that the information contained in the
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OP 13-00015 

2009 PSR is inaccurate (see People v Rudduck, 85 AD3d 1557, 1557-1558,

lv denied 17 NY3d 861; cf. People v Freeman, 67 AD3d 1202, 1202). 

Petitioner further seeks to vacate the determination of the New

York State Board of Parole (Board) denying his release to parole

supervision. Contrary to petitioner’s contention, the Board “was

entitled to rely on the information contained in the [2009]

presentence investigation report” and, as previously noted,

“petitioner is foreclosed from challenging the accuracy of that report

here, inasmuch as he failed to raise such a challenge before the

sentencing court” (Carter, 81 AD3d at 1031). With respect to

petitioner’s remaining challenges to the parole determination, it is

well settled that, “[w]here, as here, there is no ‘showing of

irrationality bordering on impropriety,’ judicial intervention is not

warranted” (Matter of Johnson v Dennison, 48 AD3d 1082, 1083, quoting

Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see

Matter of Gaston v Berbary, 16 AD3d 1158, 1159). 

To the extent that petitioner challenges the determinations of

the Board and/or the New York State Department of Corrections and

Community Supervision (DOCCS) with respect to work release, temporary

release, presumptive release, merit time and merit release, those

challenges are untimely inasmuch as they were not interposed “within

four months after the determination[s became] final and binding”

(Matter of Hayes v Evans, 98 AD3d 1207, 1208; see CPLR 217 [1]; Matter

of Velez v New York State Div. of Parole, 104 AD3d 1013, 1013; Matter

of Purcell v Dennison, 29 AD3d 1128, 1128-1129). Moreover, petitioner

failed to exhaust his administrative remedies with respect to the work

release and presumptive release determinations (see generally Watkins,

305 AD2d at 890).

Petitioner’s application for a writ of habeas corpus is

procedurally defective (see CPLR 7004 [b]; People ex rel. Backus v

Broome County Dept. of Social Servs., 240 AD2d 786, 787; People ex

rel. Doe v Beaudoin, 102 AD2d 359, 362) and, in any event, “[b]ecause

the [amended] petition[/complaint] raises issues that [may be] raised

on petitioner’s direct appeal [or] by a CPL article 440.10 motion,

habeas corpus relief is unavailable” (People ex rel. Lyons v Conway,

32 AD3d 1324, 1324, lv denied 8 NY3d 802; see People v ex rel. Smith v

Graham, 109 AD3d 1113). 

Finally, we conclude that petitioner’s remaining claims for

relief are unavailable and/or are without merit. 

Entered: February 7, 2014 Frances E. Cafarell

Clerk of the Court