Brownlee v. Kohm

61 A.D.3d 972, 877 N.Y.S.2d 460

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 2009
• Status: Published

Opinion

Proceeding, inter alia, pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Robert C. Kohn, a Justice of the Supreme Court, Queens County, to resentence the petitioner in the matter entitled People v Brownlee, pending in that court under indictment No. 10037/07, as a first-time offender rather than as a predicate felony offender. Application by the petitioner to prosecute the proceeding as a poor person.

Ordered that the application to prosecute the proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; 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. Dillon, J.P., Florio, Angiolillo and Belen, JJ., concur.