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Pettus v. Mangano

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


February 9, 2010

IN THE MATTER OF JAMES PETTUS, PETITIONER,
v.
GUY MANGANO, JR., ET AL., RESPONDENTS.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel Guy Mangano, Jr., a Justice of the Supreme Court, Kings County, Charles J. Hynes, the District Attorney, Kings County, and Frank Dudis, an Assistant District Attorney, Kings County, to appoint a special prosecutor to investigate improprieties allegedly committed by the respondents in connection with a criminal proceeding entitled People v Pettus, commenced in the Supreme Court, Kings County, under Indictment No. 6013/02, and application by the petitioner for poor person relief.

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.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, HOWARD MILLER & RANDALL T. ENG, JJ.

DECISION, ORDER & JUDGMENT

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, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when 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.

COVELLO, J.P., SANTUCCI, MILLER and ENG, JJ., concur.

20100209

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