Wynter v. Kase — 102 A.D.3d 975

Majority

p. 975

In the Matter of Orville Wynter, Petitioner, v John Kase et al., Respondents.

[958 NYS2d 603]

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent John Kase, an Acting Justice of the Supreme Court, Nassau County, “to hold a statutory evidentiary hearing ... to substantiate” the petitioner’s persistent violent felony offender adjudication in an underlying criminal action entitled People v Wynter, commenced in the County Court, Nassau County, under indictment No. 93053, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12 ,

p. 976

16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Rivera, J.P., Chambers, Roman and Cohen, JJ., concur.

Cases cited

Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 p. 975