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Murray v. Pesce

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


September 29, 2009

IN THE MATTER OF DEXTER MURRAY, PETITIONER,
v.
MICHAEL PESCE, ETC., ET AL., RESPONDENTS.

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Michael Pesce, a Justice of the Supreme Court, Kings County, to vacate the sentence imposed upon the petitioner on April 12, 1984, under Indictment No. 3557/83, and application by the petitioner to prosecute the proceeding as a poor person.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., MARK C. DILLON, JOSEPH COVELLO and RANDALL T. ENG, JJ.

DECISION, ORDER & JUDGMENT

ORDERED that the application to prosecute the proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic; and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed, 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, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought.

FISHER, J.P., DILLON, COVELLO and ENG, JJ., concur.

20090929

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