Matter of Witherspoon v Condon, 2016 NY Slip Op 08534 [145 AD3d 908]

December 21, 2016

Appellate Division, Second Department

[*1]

In the Matter of Eric G. Witherspoon, Petitioner,

v

William J. Condon, a Justice of the Supreme Court, Suffolk County, Respondent.

Eric G. Witherspoon, Stormville, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent William J. Condon, a Justice of the Supreme Court, Suffolk County, inter alia, to vacate an order dated May 10, 2016, made in a criminal action entitled People v Witherspoon , under Suffolk County indictment No. 983-95, 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 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. Chambers, J.P., Roman, Miller and Barros, JJ., concur..