                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   517918
________________________________

In the Matter of JOHN D.
   JUSTICE,
                    Appellant,              MEMORANDUM AND ORDER
      v

ANDREA EVANS, as Chair of the
   Division of Parole, et al.,
                    Respondents.
________________________________


Calendar Date:   September 8, 2014

Before:   McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                             __________


     John D. Justice, Comstock, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for Andrea Evans, respondent.

      Thomas Marcelle, County Attorney, Albany (Adam G. Giangreco
of counsel), for David Soares, respondent.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Lynch, J.),
entered November 8, 2013 in Albany County, which, in a proceeding
pursuant to CPLR article 78, among other things, granted a motion
by respondent Chair of the Division of Parole to dismiss the
petition against her.

      Petitioner was convicted of various crimes after he stabbed
his mother to death and caused a fatal car accident, and is
presently serving an aggregate prison sentence of 13a to 40
years (People v Justice, 202 AD2d 918 [1994], lv denied 83 NY2d
                              -2-                517918

968 [1994]; People v Justice, 173 AD2d 144 [1991]). He was
conditionally released to parole supervision in 2005 and was
placed in a halfway house operated by Saving Grace Ministries,
Inc. Petitioner violated the terms of his parole, which was
revoked in 2007, and he remains incarcerated (People ex rel.
Justice v Racette, 111 AD3d 1041 [2013], lv denied 22 NY3d 861
[2014]).

      Dissatisfied with the treatment that he had received prior
to and during his parole release, and believing that Saving Grace
had engaged in illegal activity in order to obtain public monies
earmarked for parolees under its supervision, petitioner brought
a federal civil lawsuit against Saving Grace and others.
Petitioner then sought a rehearing of the parole revocation
determination in April 2012, arguing that information obtained in
the civil suit called into question the credibility of witnesses
at the original hearing and revealed the illegal conduct of
Saving Grace (see 9 NYCRR 8006.3 [c]). Petitioner commenced a
CPLR article 78 proceeding in July 2012 to compel the Board of
Parole to respond to his request, which petition was dismissed as
premature. He commenced a second CPLR article 78 proceeding
seeking the same relief in February 2013, which petition was
dismissed as academic after the Board denied petitioner's
application for a rehearing in April 2013.

      Shortly after the Board rendered its determination,
petitioner commenced the present CPLR article 78 proceeding,
seeking to annul that determination and the disqualification of
respondent Albany County District Attorney so that a special
prosecutor could probe the claims of malfeasance alleged in his
civil action. The District Attorney served an answer and
asserted that petitioner had not articulated a valid basis for
his disqualification. Respondent Chair of the Division of Parole
filed a pre-answer motion to dismiss the petition, arguing that
the present proceeding was essentially identical to the one
commenced in February 2013. Supreme Court granted the Chair's
motion, agreed with the District Attorney that the appointment of
a special prosecutor was unwarranted, and dismissed the petition.
Petitioner now appeals.
                              -3-                517918

      The record reflects, and the Chair concedes, that the
February 2013 proceeding did not deal with issues identical to
those in the present case, insofar as the former sought to compel
the Board to issue a determination upon petitioner's request for
a rehearing and the latter seeks to review the determination
itself. Under the circumstances presented by this case, we agree
with the Chair that "the facts are [not] so fully presented in
the papers of the respective parties that it is clear that no
dispute as to the facts exists and no prejudice will result from
the failure to require an answer" (Matter of Nassau BOCES Cent.
Council of Teachers v Board of Coop. Educ. Servs. of Nassau
County, 63 NY2d 100, 102 [1984]). As such, we remit so that the
Chair may file an answer and administrative record (see CPLR 7804
[e], [f]; Matter of Bethelite Community Church, Great Tomorrows
Elementary School v Department of Envtl. Protection of City of
N.Y., 8 NY3d 1001, 1002 [2007]).

      Petitioner also argues that Supreme Court erred in
dismissing that part of the petition seeking the appointment of a
special prosecutor to investigate the purportedly illegal
activities of Saving Grace. Such a request would ordinarily
constitute an impermissible attempt to force a prosecutor to act
upon petitioner's allegations of criminality (see Matter of
Pettus v District Attorney, N.Y. County, 76 AD3d 1153, 1154
[2010]; Matter of Dyno v Hillis, 274 AD2d 908, 910 [2000], appeal
dismissed 95 NY2d 958 [2000], lv denied 96 NY2d 706 [2001]).
Petitioner nevertheless contends that the appointment of a
special prosecutor is warranted here because the District
Attorney is "disqualified from acting" due to his professional
involvement with state officials who purportedly wish to avoid an
investigation into petitioner's allegations (County Law § 701
[1]). We need only note, however, that petitioner falls far
short of making the requisite showing that the District Attorney
has a conflict of interest in dealing with petitioner's
allegations because of those professional relationships or that
any targets of a criminal investigation would be prejudiced by
them (see Matter of Soares v Herrick, 20 NY3d 139, 146-147
[2012]; Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983];
Matter of Columbia County Subpoena Duces Tecum Dated Mar. 20,
2013 [Czajka], 118 AD3d 1081, 1083 [2014]). We are further
unpersuaded that this case presents the rare situation wherein
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disqualification is warranted due to an appearance of impropriety
that "discourage[s] public confidence in our government and the
system of law to which it is dedicated" (People v Zimmer, 51 NY2d
390, 396 [1980]; see People v Adams, 20 NY3d 608, 612 [2013];
Matter of Columbia County Subpoena Duces Tecum Dated Mar. 20,
2013 [Czajka], 118 AD3d at 1083). Supreme Court thus
appropriately dismissed the petition insofar as it dealt with the
District Attorney.

     McCarthy, J.P., Rose, Egan Jr. and Devine, JJ., concur.



      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as granted the motion of
respondent Chair of the Division of Parole to dismiss the
petition; motion denied and matter remitted to the Supreme Court
to permit respondent Chair to serve an answer within 20 days of
the date of this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
