Matter of Castillo v Latella

Matter of Castillo v Latella 2013 NY Slip Op 08623 Decided on December 26, 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 December 26, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
MARK C. DILLON
THOMAS A. DICKERSON
LEONARD B. AUSTIN, JJ.
2013-09681 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Celso L. Castillo, petitioner,

v

John B. Latella, etc., respondent. Celso L. Castillo, Malone, N.Y., petitioner pro se.




Eric T. Schneiderman, Attorney General, New York, N.Y. (Andrew
H. Meier of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, John B. Latella, a Justice of the Supreme Court, Queens County, to determine the petitioner's motion pursuant to CPL article 440 to vacate a judgment of conviction of the same court rendered October 22, 1998, in a criminal action entitled People v Castillo, commenced in that court under Indictment Nos. 734/97 and 1482/97, 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. In an order dated November 25, 2013, the respondent determined the motion. Hence, we deny the petition as academic, and dismiss the proceeding.
SKELOS, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court