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In re Baker

Supreme Court of New York, Second Department

October 23, 2013

In the Matter of Joanne Baker, etc., petitioner,
v.
Barbara G. Zambelli, etc., respondent.

Leavitt & Kerson, Woodside, N.Y. (Paul E. Kerson of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael A. Berg of counsel), for respondent.

Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender of counsel), nonparty pro se.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent, Barbara G. Zambelli, a Judge of the County Court, Westchester County, to modify the terms of the petitioner's probation pursuant to CPL 410.20 in an underlying criminal action entitled People v Baker, commenced in the County Court, Westchester County, under Indictment No. 09-00670.

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.

ANGIOLILLO, J.P., HALL, AUSTIN and MILLER, JJ., concur.


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