Opinion
2013-09-25
In the Matter of Koba PERADZE, petitioner, v. Peter FORMAN, etc., respondent.
Koba Peradze, Elmira, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
Koba Peradze, Elmira, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Peter Forman, a Judge of the County Court, Dutchess County, to determine a motion made by the petitioner pursuant to CPL 440.10 in an underlying criminal action entitled People v. Peradze, 15 A.D.3d 678, 791 N.Y.S.2d 586 (2005) commenced in that court under Indictment No. 50/01. 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, 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.