IN RE: Terrell Mitchell

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Terrell Mitchell, petitioner, v Robert Kohm, etc., et al., respondents.  Terrell Mitchell, E. Elmhurst, N.Y., petitioner

2010-03673

Decided: August 17, 2010

PETER B. SKELOS, J.P. JOHN M. LEVENTHAL CHERYL E. CHAMBERS L. PRISCILLA HALL, JJ. pro se. Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael Siudzinski of counsel), for respondent Robert Kohm.

DECISION, ORDER & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent, Robert Kohm, Justice of the Supreme Court, Queens County, to entertain and decide a motion made by the petitioner, a criminal defendant in an action entitled People v. Mitchell, pending in Supreme Court, Queens County, under Indictment No. 580/08.   Application by the petitioner to prosecute this proceeding as a poor person.

ORDERED that the application to prosecute this proceeding as a poor person 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 when there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 N.Y.2d 12, 16).   The petitioner has failed to demonstrate a clear legal right to the relief sought.

SKELOS, J.P., LEVENTHAL, CHAMBERS and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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