Lewis v. Moskowitz

— Proceeding pursuant to CPLR article 78 (1) to prohibit Justice Ruth Moskowitz from undertaking any further proceedings with regard to the defendant’s pro se motion pursuant to CPL 440.10 to vacate his judgment of conviction under Kings County indictment No. 1310/86, (2) to prohibit the Legal Aid Society from any representation of the defendant on that application, and (3) to compel the assignment of Lisa Scolari, who was his assigned counsel on his direct appeal from the judgment of conviction to represent him with respect to his CPL 440.10 motion in place of the Legal Aid Society. Adjudged that the proceeding is dismissed as academic, without costs or disbursements. By order dated December 2, 1988, Justice Moskowitz denied the petitioner’s pro se motion to vacate a judgment rendered 420 April 1, 1987 (Moskowitz, J.), convicting him of six counts of murder in the second degree, upon a jury verdict, and imposing sentence. That order, which was rendered prior to the return date of the instant petition, rendered this proceeding academic. We note, furthermore, that a CPLR article 78 proceeding generally does not lie to review errors claimed to have occurred in a criminal proceeding (Matter of Hennessey v Gorman, 58 NY2d 806, 807). Inasmuch as there is no claim that the respondents lacked jurisdiction or authority to act in the underlying criminal action, the matter is inappropriate for CPLR article 78 treatment and the proceeding in the nature of prohibition must be dismissed (Matter of Greenberg v Turner, 127 AD2d 909). Mollen, P. J., Thompson, Spatt and Harwood, JJ., concur.