Barnes v. Wexner

8 A.D.3d 269, 777 N.Y.S.2d 667, 2004 N.Y. App. Div. LEXIS 7484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2004
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to recall and vacate an order denying the petitioner’s motion to dismiss the indictment in an action entitled People v Barnes, pending in the Supreme Court, Nassau County, under Indictment No. 1818N-03, and to grant the motion. Application by the petitioner for poor person relief and assignment of counsel. Cross motion by the respondent to dismiss the proceeding.

Ordered that the application is granted to the extent that the filing fee is waived, and the application is otherwise denied as academic; and it is further,

Ordered that the motion is granted; 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 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Santucci, J.P., Townes, Crane and Mastro, JJ., concur.