Opinion
2003-09422.
December 22, 2003.
Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to fully expunge all records pertaining to the petitioner's DNA sample pursuant to Executive Law § 995-c(9)(b)(ii). Motion by the petitioner to stay all proceedings in an action entitled People v. Midgley, pending in the Supreme Court, Kings County, under Indictment No. 1256/02 pending the hearing and determination of this proceeding and motion by the respondent to dismiss the proceeding.
Paul Lieberman, Brooklyn, N.Y., for appellant.
Eliot Spitzer, Attorney-General, New York, N.Y. (Monica A. Connell of counsel), for respondent.
Before: GLORIA GOLDSTEIN and WILLIAM F. MASTRO, JJ.
DECISION, ORDER JUDGMENT
ORDERED that the motion to dismiss the proceeding is granted; and it is further,
ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements; and it is further,
ORDERED that the motion for a stay is denied as academic.
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 Society 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.
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.