Matter of Contant v. Kelly

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, a Justice of the Supreme Court, Rockland County, to hold a hearing on the petitioner’s motion pursuant to CPL 440.20 to vacate a judgment of that court rendered October 3, 2007, in a criminal action entitled People v Contant, brought under Rockland County indictment No. 06-00362, and application by the petitioner for leave to prosecute the proceeding as a poor person.

Ordered that the application for leave to prosecute the proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.

*521 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.