Midgley v. Goldberg

2 A.D.3d 735, 768 N.Y.S.2d 624

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2003
• Status: Published

Opinion

— Proceeding pursuant to CFLR article 78 in the nature of mandamus, inter alia, to fully expunge all records pertaining to the petitioner’s DNA sample pursuant to Executive Law § 995-c (9) (b) (ii). Motion by the petitioner to stay all proceedings in an action entitled People v Midgley, pending in the Supreme Court, Kings County, under Indictment No. 1256/02 pending the hearing and determination of this proceeding and motion by the respondent to dismiss the proceeding.

Ordered that the motion to dismiss the proceeding is granted; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements; and it is further,

Ordered that the motion for a stay is denied as academic.

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. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.