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In re Lebovits

Supreme Court of New York, Second Department

June 12, 2013

In the Matter of Baruch Lebovits, petitioner,
v.
Ruth Shillingford, etc., respondent.

Dershowitz, Eiger & Adelson, P.C., New York, N.Y. (Nathan Z. Dershowitz and Amy Adelson of counsel), and Aidala & Bertuna, P.C., Brooklyn, N.Y. (Arthur L. Aidala of counsel), for petitioner (one brief filed).

Eric T. Schneiderman, Attorney General, New York, N.Y. (Anthony J. Tomari of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Ruth Shillingford, an Acting Justice of the Supreme Court, Kings County, to hold a hearing to determine whether, upon double jeopardy grounds, dismissal of the accusatory instrument with prejudice is required and make a determination with respect to the petitioner's motion pursuant to CPL 440.10.

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 N.Y.2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought.

RIVERA, J.P., LEVENTHAL, SGROI and COHEN, JJ., concur.


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