Matter of Shepherd v. Pesce

Matter of Shepherd v Pesce (2022 NY Slip Op 01300)

Matter of Shepherd v Pesce

2022 NY Slip Op 01300

Decided on March 2, 2022

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 March 2, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON
LARA J. GENOVESI, JJ.
2021-07171 DECISION, ORDER & JUDGMENT

Letitia James, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent.

Eon Shepherd, Stormville, NY, petitioner pro se.

Proceeding pursuant to CPLR article 78, inter alia, in effect, in the nature of mandamus to compel the respondent to grant withdrawal of the petitioner's plea of guilty with respect to Kings County Indictment No. 1985/86, and application 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 as academic; 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.

The petitioner's remaining contentions are without merit.

DILLON, J.P., CONNOLLY, BRATHWAITE NELSON and GENOVESI, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court