Matter of Alfred Barnes v Ira H. Wexner

Matter of Barnes v Wexner 2004 NY Slip Op 04325 [8 AD3d 269] June 1, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

In the Matter of Alfred Barnes, Petitioner,
v
Ira H. Wexner, as Justice of the Supreme Court of the State of New York, Respondent.

—[*1]Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to recall and vacate an order denying the petitioner's motion to dismiss the indictment in an action entitled People v Barnes, pending in the Supreme Court, Nassau County, under Indictment No. 1818N-03, and to grant the motion. Application by the petitioner for poor person relief and assignment of counsel. Cross motion by the respondent to dismiss the proceeding.

Ordered that the application is granted to the extent that the filing fee is waived, and the application is otherwise denied as academic; 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. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Santucci, J.P., Townes, Crane and Mastro, JJ., concur.