Matter of McTootle v Rice
2009 NY Slip Op 02607 [60 AD3d 1068]
March 31, 2009
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 6, 2009


In the Matter of Roschette R. McTootle, Appellant,
v
Kathleen M. Rice, Respondent.

[*1] Roschette R. McTootle, Long Beach, N.Y., appellant pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Jason P. Weinstein of counsel), respondent pro se.

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel Kathleen M. Rice, the District Attorney of Nassau County, to prosecute an alleged crime, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Mahon, J.), entered October 3, 2007, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

It is well settled that the decision whether to prosecute is entrusted to the sole discretion of the District Attorney (see Matter of Nieblas v Kings County Dist. Attorney, 209 AD2d 703 [1994]; Matter of Hynes v Demarest, 202 AD2d 669 [1994]; see also People v Di Falco, 44 NY2d 482 [1978]). Mandamus cannot be used to compel a purely discretionary act by a public official (see Matter of Mullen v Axelrod, 74 NY2d 580 [1989]; Matter of Milek v Town of Hempstead, 294 AD2d 440 [2002]). Accordingly, the dismissal of the proceeding was proper. [*2]

The petitioner's remaining contentions are raised for the first time on appeal, and are thus not properly before this Court. Skelos, J.P., Santucci, Balkin and Chambers, JJ., concur.