

Matter of McClinton v Toomey (2016 NY Slip Op 04943)





Matter of McClinton v Toomey


2016 NY Slip Op 04943


Decided on June 22, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 22, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.


2016-02700	DECISION, ORDER & JUDGMENT

[*1]In the Matter of Charles McClinton, petitioner,
vJohn J. Toomey, Jr., etc., et al., respondents.


Charles McClinton, Riverhead, NY, petitioner pro se.
Eric T. Schneiderman, Attorney General, New York, NY (Michelle R. Lambert of counsel), for respondent John J. Toomey, Jr.
Thomas J. Spota, District Attorney, Riverhead, NY (Michael J. Miller of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondents John J. Toomey, Jr., a Judge of the County Court, Suffolk County, and Thomas J. Spota, the Suffolk County District Attorney, to provide the petitioner with grand jury minutes in a criminal action entitled People v McClinton , pending in the County Court, Suffolk County, under Indictment No. 1554-15, 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, 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 NY2d 12, 16).  The petitioner has failed to demonstrate a clear legal right to the relief sought.
DILLON, J.P., CHAMBERS, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


