Wilson v. Demakos

252 A.D.2d 559, 675 N.Y.S.2d 888, 1998 N.Y. App. Div. LEXIS 8410

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1998
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to review his determination dated February 24, 1998, denying that branch of the petitioner’s motion which was to suppress evidence in a criminal proceeding entitled People v Wilson, pending in the Supreme Court, Queens County, under Indictment No. 01522/97, and application by the petitioner to prosecute the proceeding as a poor person.

Motion by the respondent to dismiss the proceeding.

Ordered that the application to prosecute the proceeding as a poor person is granted; 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., Copertino, Joy and Florio, JJ., concur.