                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   519859
________________________________

In the Matter of ERWIN
   JACKSON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

BRIAN FISCHER, as Commissioner
   of Corrections and
   Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   September 18, 2015

Before:   Garry, J.P., Rose, Lynch and Devine, JJ.

                             __________


     Erwin Jackson, Elmira, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Zainab A.
Chaudhry of counsel), for respondents.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Platkin, J.),
entered July 17, 2014 in Albany County, which, in a proceeding
pursuant to CPLR article 78, among other things, granted
respondents' motion to dismiss the petition.

      In 2008, petitioner was convicted of nine counts of robbery
in the first degree and one count of conspiracy in the first
degree and sentenced as a first-time felony offender to an
aggregate prison term of 30 years. On appeal, petitioner's
convictions were affirmed, but it was determined, on the People's
cross appeal, that the People had proven that petitioner had two
                              -2-                519859

predicate violent felony offender convictions, and the matter was
remitted for resentencing (People v Jackson, 65 AD3d 1164 [2009],
lv denied 13 NY3d 939 [2010]). Petitioner was thereafter
resentenced as a persistent violent felony offender to various
indeterminate terms of imprisonment (People v Jackson, 92 AD3d
958 [2012], lv denied 19 NY3d 962 [2012]). Petitioner was
returned to the custody of the Department of Corrections and
Community Supervision (hereinafter DOCCS) on November 18, 2009
and the sentencing minutes and an updated 2009 uniform sentence
and commitment order were subsequently sent to DOCCS, which
recalculated his sentence. Petitioner thereafter commenced this
CPLR article 78 proceeding seeking to prohibit DOCCS from
enforcing the 2009 commitment order. Supreme Court, among other
things, granted respondents' motion to dismiss the petition,
finding that petitioner failed to state a claim cognizable in a
CPLR article 78 proceeding and that prohibition does not lie.
Petitioner appeals.

      Under settled law, "[a CPLR] article 78 proceeding in the
nature of prohibition will not lie to correct procedural or
substantive errors of law" (Matter of Soares v Herrick, 20 NY3d
139, 145 [2012] [internal quotation marks and citation omitted]).
Rather, the extraordinary remedy of prohibition "lies only where
there is a clear legal right to such relief, and only when [the
body or officer involved] acts or threatens to act without
jurisdiction in a matter . . . over which it has no power over
the subject matter or where it exceeds its authorized powers in a
proceeding over which it has jurisdiction" (Matter of HCI
Distrib., Inc. v New York State Police, Troop B Commander, 110
AD3d 1297, 1298 [2013] [internal quotation marks and citations
omitted]). Even when available, prohibition is a discretionary
remedy (see Matter of Soares v Herrick, 20 NY3d at 145).

      Petitioner contends that the 2009 commitment order is
incorrect and inconsistent with the sentence pronounced in court
upon his resentencing. However, even if petitioner is correct, a
point on which we express no opinion, this claim "must be pursued
through appropriate proceedings before th[e sentencing] court"
(Matter of McCullaugh v DeSimone, 111 AD3d 1011, 1012 [2013]; see
Matter of Mingo v Fischer, 92 AD3d 1051, 1052 [2012], lv denied
19 NY3d 801 [2012]; People v Samuels, 80 AD3d 1077, 1078 [2011];
                              -3-                  519859

People v Gray, 11 AD3d 821, 822 [2004]; People v Jenkins, 300
AD2d 751, 753-754 [2002], lv denied 99 NY2d 615 [2003]). Unless
and until such a correction is made to the commitment order,
DOCCS is "conclusively bound by the contents of commitment
papers" (Matter of Reed v Fischer, 79 AD3d 1517, 1518 [2010]
[internal quotation marks, citations and emphasis omitted];
accord Matter of Murray v Goord, 1 NY3d 29, 32 [2003]; see Matter
of McCullaugh v DeSimone, 111 AD3d at 1011).

      We are similarly unpersuaded by petitioner's claim that
DOCCS was not authorized to rely on or enforce the 2009
commitment order because he was returned to DOCCS' custody after
resentencing without the delivery of that order to DOCCS, as
contemplated by CPL 380.65. Pursuant to CPL 380.65, however,
"[a] sentence and commitment . . . is not defective by reason of
a failure to comply with the provisions of this section."
Further, under these circumstances, when petitioner was returned
to DOCCS' custody without the new commitment order, DOCCS
remained "conclusively bound" by the 2008 commitment order
(Matter of Reed v Fischer, 79 AD3d at 1518 [internal quotation
marks, citations and emphasis omitted]) and, upon subsequent
receipt of the 2009 commitment order, DOCCS acted within its
authority in recalculating his sentence. Petitioner's remaining
claims also lack merit and, thus, Supreme Court correctly granted
respondents' motion to dismiss the petition.

     Garry, J.P., Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
