Matter of Patterson v Greller

Matter of Patterson v Greller 2016 NY Slip Op 02097 Decided on March 23, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
2015-09770 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Joseph Patterson, petitioner,

v

Stephen L. Greller, etc., respondent.

Joseph Patterson, Wallkill, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Stephen L. Greller, a now-retired Justice of the County Court, Dutchess County, to determine the petitioner's motion pursuant to CPL article 440 to vacate a judgment of conviction of the same court rendered November 5, 2008, in a criminal action entitled People v Patterson , commenced in that court under Indictment No. 143/06, 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 as academic 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 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). Here, the petitioner seeks mandamus to compel the respondent to determine the petitioner's motion pursuant to CPL article 440 to vacate a judgment of conviction rendered in an underlying criminal action. The petitioner's motion was determined in an order of the County Court, Dutchess County (Brown, J.), dated January 19, 2016. Therefore, we deny the petition as academic and dismiss the proceeding.

HALL, J.P., SGROI, HINDS-RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court