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In re Cole

Supreme Court of New York, Second Department

January 22, 2014

In the Matter of Antonio Cole, petitioner,
v.
Nicholas DeRosa, etc., respondent.

Antonio Cole, Auburn, N.Y., petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, THOMAS A. DICKERSON, LEONARD B. AUSTIN, JJ.

DECISION, ORDER & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent, Nicholas DeRosa, a Judge of the County Court, Orange County, to recuse himself from determining any additional motions pursuant to CPL 440 to vacate a judgment of conviction of the same court rendered February 23, 2001, in the criminal action entitled People v Cole, commenced in that court under Indictment No. 1999/739, and application by the petitioner for poor person relief.

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 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., DILLON, DICKERSON and AUSTIN, JJ., concur.


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