Phillips v. Rios

245 A.D.2d 458, 666 N.Y.S.2d 460, 1997 N.Y. App. Div. LEXIS 13112

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1997
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Jamie A. Rios, Justice of the Supreme Court, Queens County, to dismiss Queens County Indictment No. 12891/96.

Application by the petitioner for poor person relief and the assignment of counsel.

Motion by the respondent Jamie A. Rios, Justice of the Supreme Court, Queens County, to dismiss the proceeding.

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

Ordered that the branch of the application which is for poor person relief is granted; and it is further,

Ordered that the application is otherwise denied; and it is further,

Ordered that the motion is granted; 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. v Scheinman, 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Santucci, Joy and Lerner, JJ., concur.