Matter of Hamilton v Chambers

Matter of Hamilton v Chambers 2006 NY Slip Op 10068 [35 AD3d 859] December 26, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

In the Matter of Derrick Hamilton, Petitioner,
v
Cheryl Chambers, 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 Cheryl Chambers, a Justice of the Supreme Court, Kings County, to conduct proceedings wherein the petitioner may submit exculpatory evidence with regard to his motion pursuant to CPL article 440, which was denied by order of the Supreme Court, Kings County, dated May 17, 2006, and application for leave to prosecute the proceeding as a poor person.

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 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. Miller, J.P., Crane, Lifson and Dillon, JJ., concur.