Matter of Smith v Condon

Matter of Smith v Condon 2015 NY Slip Op 07849 Decided on October 28, 2015 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 October 28, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
L. PRISCILLA HALL
COLLEEN D. DUFFY
BETSY BARROS, JJ.
2015-07813 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Matthew R. Smith, petitioner,

v

William J. Condon, etc., et al., respondents.

Matthew R. Smith, Bay Shore, N.Y., petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael J. Siudzinski of counsel), for respondent William J. Condon.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), respondent pro se.

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Megan O'Donnell of counsel), for respondent County of Suffolk.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent William J. Condon, a Justice of the Supreme Court, Suffolk County, to vacate a judgment of conviction of the same court rendered February 8, 2013, in a criminal action entitled People v Smith , under Indictment No. 1341-12, and application by the petitioner for poor person relief. Motion by the respondent County of Suffolk pursuant to CPLR 3211(a) to dismiss the petition insofar as asserted against it.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion of the respondent County of Suffolk to dismiss the petition insofar as asserted against it is granted, without costs or disbursements (see CPLR 506); and it is further,

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 on the merits insofar as asserted against the respondents William J. Condon and Thomas J. Spota, without costs or disbursements; and it is further,

ADJUDGED that 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). The petitioner has failed to [*2]demonstrate a clear legal right to the relief sought.

CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court