Mackey v. Warden, Suffolk County Correctional Facility

16 A.D.3d 690, 791 N.Y.S.2d 442, 2005 N.Y. App. Div. LEXIS 3296

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 2005
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, in effect, to compel the dismissal of a criminal action entitled People v Mac-key, pending in the County Court, Suffolk County, under Suffolk County indictment No. 2393/04, and application by the petitioner for poor person relief.

Upon the papers filed in support of the proceeding and the application, and the papers filed in opposition thereto, it is

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 is waived and the application is otherwise denied; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when” a body or officer “acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). Similarly, 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. Schmidt, J.P., Goldstein, Crane and Fisher, JJ., concur.