Champion v. Belmont

Nov 19, 2004
Versions:12 A.D.3d 1152
784 N.Y.S.2d 471
2004 N.Y. App. Div. LEXIS 14024

Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (Anthony F. Shaheen, J.), entered October 21, 2003 in a proceeding pursuant to CPLR article 78. The judgment denied the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: In April 1997 petitioner was convicted of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and two counts of burglary in the first degree (§ 140.30 [2], [3]), and the judgment of conviction was affirmed by this Court (People v Champion, 273 AD2d 899 [2000], lv denied 96 NY2d 733 [2001]). In July 2003 petitioner commenced this CPLR article 78 proceeding to compel respondent to correct or expunge allegedly false statements in the presentence report that was before County Court at the time of sentencing. We conclude that Supreme Court properly denied the petition inasmuch as the challenges now raised by petitioner should have been raised before the sentencing court, prior to sentencing (see Matter of Salerno v Murphy, 292 AD2d 837, 837-838 [2002], lv denied 98 NY2d 607 [2002]; Matter of Hughes v New York City Dept. of Probation, 281 AD2d 229 [2001]; Matter of Sciaraffo v New York City Dept. of Probation, 248 AD2d 477 [1998]; Matter of Salahuddin v Mitchell, 232 AD2d 903, 904 [1996]; see also CPL 390.30, 390.40, 400.10 [3]). Present— Hurlbutt, J.P., Scudder, Kehoe, Gorski and Martoche, JJ.