Opinion
October 28, 1996.
Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to declare a mistrial in a criminal proceeding entitled People v Wyman, pending in the Supreme Court, Queens County, and to direct the respondent to retry him under Queens County Indictment No. QN11073/95. Motion by the respondent to dismiss the proceeding. Ordered that the motion is granted; and it is further, Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.
Before: Bracken, J.P., Sullivan, Altman and McGinity, JJ.
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. v Scheinman, 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought.