Lebovits v. Shillingford

Proceeding pursu*803ant to CPLR article 78 in the nature of mandamus to compel the respondent Ruth Shillingford, an Acting Justice of the Supreme Court, Kings County, to hold a hearing to determine whether, upon double jeopardy grounds, dismissal of the accusatory instrument with prejudice is required and make a determination with respect to the petitioner’s motion pursuant to CPL 440.10.

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 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Rivera, J.P., Leventhal, Sgroi and Cohen, JJ., concur.