Opinion
518027
03-26-2015
In the Matter of Robert JONES, Appellant, v. Kevin P. HICKEY, as Assistant Attorney General of the State of New York, Respondent.
Robert Jones, Coxsackie, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Robert Jones, Coxsackie, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.
Opinion
EGAN JR., J. Appeal from a judgment of the Supreme Court (Elliott III, J.), entered October 22, 2013 in Greene County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner, a prison inmate, commenced this CPLR article 78 proceeding seeking to revisit the denial of a prior application for a writ of habeas corpus. Supreme Court granted respondent's motion to dismiss the petition and petitioner now appeals.
Subsequently, this Court affirmed the judgment denying petitioner's application for the writ of habeas corpus (People ex rel. Jones v. Martuscello, 111 A.D.3d 1184, 975 N.Y.S.2d 698 [2013], appeal dismissed 23 N.Y.3d 957, 988 N.Y.S.2d 127, 11 N.E.3d 201 [2014] ).
We affirm. Inasmuch as the relief requested by petitioner is outside the scope of a CPLR article 78 proceeding, Supreme Court properly dismissed the petition upon that ground (see CPLR 7803 ). Moreover, to the extent that Supreme Court treated the petition as a motion to renew, we agree that petitioner failed to demonstrate that the alleged newly discovered evidence underlying the motion “could not have been discovered sooner through the exercise of due diligence and that it would likely produce a different result” (Matter of Vega v. Fischer, 108 A.D.3d 955, 955, 969 N.Y.S.2d 611 [2013], lv. dismissed 22 N.Y.3d 953, 977 N.Y.S.2d 181, 999 N.E.2d 545 [2013] ; see CPLR 2221 ). Petitioner's remaining claims have been considered and found to be without merit.
ORDERED that the judgment is affirmed, without costs.
McCARTHY, J.P., DEVINE and CLARK, JJ., concur.