MATTER OF WILCOX v. Dwyer

48 N.Y.2d 1003 (1980)

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.

Court of Appeals of the State of New York.

Argued January 3, 1980.

Decided January 8, 1980.

Robert Abrams, Attorney-General (Peter J. Dooley, Shirley Adelson Siegel and Lawrence L. Doolittle of counsel), for M. Andrew Dwyer, as Judge of the County Court of Rensselaer County, appellant.

Jerome K. Frost and Mary D. Audi for Clarisse Philips, appellant.

Charles J. Wilcox, District Attorney (Robert L. Adams of counsel), respondent pro se.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

*1004MEMORANDUM.

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 N.Y.2d 621, 40 N.Y.2d 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.

Judgment reversed, etc.