Opinion
2013-01-30
In the Matter of Orville WYNTER, petitioner, v. John KASE, etc., et al., respondents.
Orville Wynter, Malone, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent John Kase.
Orville Wynter, Malone, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent John Kase.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz of counsel), respondent pro se, and for respondent Denis Dillon.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent John Kase, an Acting Justice of the Supreme Court, Westchester County, “to hold a statutory evidentiary hearing ... to substantiate” the petitioner's persistent violent felony offender adjudication in an underlying criminal action entitled People v. Wynter, commenced in the County Court, Westchester County, under Indictment No. 93053, 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; 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 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542). The petitioner has failed to demonstrate a clear legal right to the relief sought.