Brown v. Rotker ( 1995 )

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel Justice Seymour Rotker to vacate the guilty plea of Jacques Smith under Queens County Indictment No. 10339/94, and motion by the respondent to dismiss the proceeding.

Ordered that the motion is granted; 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 when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought. We note that the petitioner may take a direct appeal in the event that the underlying indictment is dismissed (see, CPL 450.20, 210.20). Mangano, P. J., Sullivan, Thompson and Hart, JJ., concur.