Matter of Martinez v Hanophy

Matter of Martinez v Hanophy 2009 NY Slip Op 05343 [63 AD3d 1067] June 23, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

In the Matter of Gilbert M. Martinez, Petitioner,
v
Robert Hanophy, Respondent.

—[*1] Gilbert M. Martinez, Brooklyn, N.Y., petitioner pro se.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Robert L. Martin of counsel), for respondent.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel Robert Hanophy, a Justice of the Supreme Court, Queens County, to determine the petitioner's motion to dismiss Queens County Indictment No. 1558/08 and to turn over to the petitioner the grand jury minutes, 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,

Ordered that the branch of the petition which is to compel Justice Hanophy to determine the petitioner's motion to dismiss the indictment is dismissed as academic, without costs or disbursements, as that motion was determined by the Supreme Court on May 12, 2009; and it is further,

Adjudged that the petition is otherwise 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 by that branch of the petition which was to compel Justice Hanophy to turn over to the petitioner the grand jury minutes. Rivera, J.P., Dillon, Balkin and Austin, JJ., concur.