
    In the Matter of Woodrow Flemming, Appellant, v Robert Morgenthau, as District Attorney of New York County, et al., Respondents.
    [789 NYS2d 878]
   Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered on or about December 22, 2003, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 challenging aspects of a criminal action against petitioner, unanimously affirmed, without costs.

The petition was properly denied since none of petitioner’s claims may be raised by way of an article 78 proceeding (CPLR 7801; Matter of Veloz v Rothwax, 65 NY2d 902 [1985]). We note that petitioner has been convicted in the underlying criminal action and has a direct appeal pending before this Court. Concur — Mazzarelli, J.P, Sullivan, Ellerin, Nardelli and Williams, JJ.  