Burse v. Bristol

203 A.D.2d 962, 612 N.Y.S.2d 990

Opinion

—Petition unanimously dismissed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding to compel County Court to hold a hearing on her pre-indictment motion to suppress evidence. Although CPL 710.50 provides that a defendant who has been held by a local criminal court for action by a Grand Jury may make a suppression motion in the superior court that impaneled or will impanel such Grand Jury, the statute does not mandate that a suppression hearing be held prior to indictment. Because petitioner has not demonstrated a clear legal right to the relief she seeks, mandamus does not lie (see, Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757; Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16-17; Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 97). (Original Article 78 Proceeding.) Present — Denman, P. J., Lawton, Fallon, Doerr and Davis, JJ. (Filed Mar. 24, 1994.)