Matter of Wynter v Kase

Matter of Wynter v Kase 2013 NY Slip Op 00496 Decided on January 30, 2013 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 January 30, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2012-09849 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Orville Wynter, petitioner,

v

John Kase, etc., et al., respondents. Orville Wynter, Malone, N.Y., petitioner pro se.




Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles
F. Sanders of counsel), for respondent John Kase.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A.
Schwartz of counsel), respondent pro
se, and for respondent Denis Dillon.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent John Kase, an Acting Justice of the Supreme Court, Westchester County, "to hold a statutory evidentiary hearing . . . to substantiate" the petitioner's persistent violent felony offender adjudication in an underlying criminal action entitled People v Wynter, commenced in the County Court, Westchester County, under Indictment No. 93053, 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 and the proceeding is dismissed on the merits, 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). The petitioner has failed to demonstrate a clear legal right to the relief sought.
RIVERA, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court