Murray v. Pesce ( 2011 )

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Michael Pesce, a Justice of the Supreme Court, Kings County, to vacate the sentence imposed upon the petitioner on January 14, 1986, under indictment No. 3557/83, and to resentence him under that indictment, and application by the petitioner to prosecute the proceeding as a poor person.

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 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 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Angiolillo, J.P., Florio, Lott and Austin, JJ., concur.