Matter of McClinton v. Condon , 146 A.D.3d 963 ( 2017 )

Matter of McClinton v Condon (2017 NY Slip Op 00475)

Matter of McClinton v Condon

2017 NY Slip Op 00475

Decided on January 25, 2017

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 January 25, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
LEONARD B. AUSTIN
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.

2016-10862

[*1]In the Matter of Charles McClinton, petitioner,

v

William J. Condon, etc., et al., respondents.

Charles McClinton, Fishkill, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondents William J. Condon and Mark D. Cohen.

Thomas J. Spota, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent William J. Condon, a Justice of the Supreme Court, Suffolk County, to determine the petitioner's motion pursuant to CPL 330, made in a criminal action entitled People v McClinton, commenced under Suffolk County Indictment No. 1554/15, and application by the petitioner 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 Soc. of Sullivan County v Scheinman, 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought.

LEVENTHAL, J.P., AUSTIN, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court