Emma v. Collini

Appellate Division of the Supreme Court of New York

Emma v. Collini

76 A.D.2d 975, 906 N.Y.S.2d 910

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 14, 2010

StatusPublished

This text of 76 A.D.2d 975 (Emma v. Collini) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Emma v. Collini, 76 A.D.2d 975, 906 N.Y.S.2d 910 (N.Y. Ct. App. 2010).

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Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Robert J. Collini, a Justice of the Supreme Court, Richmond County, to vacate an order of protection dated June 11, 2010, and entered in an underlying criminal action entitled People v Emma, prosecuted in that court under indictment No. 345/09, 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 he 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 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. The propriety an order of protection issued against the petitioner during a sentencing proceeding could have been raised on a direct appeal from the judgment of conviction (see People v Nieves, 2 NY3d 310, 312 [2004]). Mastro, J.P., Santucci, Angiolillo and Chambers, JJ., concur.

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Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Robert J. Collini, a Justice of the Supreme Court, Richmond County, to vacate an order of protection dated June 11, 2010, and entered in an underlying criminal action entitled People v Emma, prosecuted in that court under indictment No. 345/09, 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 he 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 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. The propriety an order of protection issued against the petitioner during a sentencing proceeding could have been raised on a direct appeal from the judgment of conviction (see People v Nieves, 2 NY3d 310, 312 [2004]). Mastro, J.P., Santucci, Angiolillo and Chambers, JJ., concur.

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Bluebook (online)

76 A.D.2d 975, 906 N.Y.S.2d 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emma-v-collini-nyappdiv-2010.

Opinion

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