Davis v. Lerner , 666 N.Y.S.2d 506 ( 1997 )

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to grant the petitioner’s motion pursuant to CPL 440.10 (1) (b) in the matter entitled People v Davis, pending in the Supreme Court, Queens County, under Indictment No. 2363/92, to vacate the judgment of conviction rendered June 10, 1993, which was affirmed by decision and order of this Court dated August 21, 1995 (see, People v Davis, 218 AD2d 748), and application for poor person relief.

Motion by the respondent to dismiss the proceeding.

Ordered that the application for poor person relief is granted; and it is further,

Ordered that the motion to dismiss 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 has failed to demonstrate a clear legal right to the relief sought. O’Brien, J. P., Joy, Friedmann and Goldstein, JJ., concur.