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Pettus v. Dist. Attorney

State of New York Supreme Court, Appellate Division Third Judicial Department


September 30, 2010

IN THE MATTER OF JAMES PETTUS, APPELLANT,
v.
DISTRICT ATTORNEY, NEW YORK COUNTY, RESPONDENT, AND ATTORNEY GENERAL ANDREW M. CUOMO, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Cardona, P.J., Peters, Spain, Malone Jr. and Kavanagh, JJ.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered October 21, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted respondent Attorney General's motion to dismiss the petition.

Petitioner was convicted of various offenses in New York County. He then commenced this CPLR article 78 proceeding, seeking to compel the appointment of a special prosecutor to investigate improper actions allegedly undertaken by the prosecutor in the criminal case. Respondent Attorney General moved to dismiss the petition and petitioner moved for a default judgment against respondent District Attorney of New York County. Supreme Court not only granted the Attorney General's motion, but dismissed the petition in full, and petitioner now appeals.

We affirm. Petitioner has not demonstrated that he has a clear legal right to the appointment of a special prosecutor; accordingly, the extraordinary remedy of mandamus to compel a ministerial act is unavailable to him (see Matter of Pettus v Mangano, 70 AD3d 838, 839 [2010]; Matter of Pettus v Wetzel, 60 AD3d 766, 767 [2009]; Matter of Schmitt v Skovira, 53 AD3d 918, 920 [2008]). As that relief is unavailable, Supreme Court appropriately dismissed the petition in full despite the District Attorney's default (see Martocci v Bowaskie Ice House, LLC, 31 AD3d 1021, 1022 [2006], lv dismissed 7 NY3d 916 [2006], cert denied 552 US 918 [2007]).

Cardona, P.J., Peters, Spain, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100930

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