

Matter of Madden v Balter (2019 NY Slip Op 08677)





Matter of Madden v Balter


2019 NY Slip Op 08677


Decided on December 4, 2019


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 December 4, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
JOSEPH J. MALTESE
LINDA CHRISTOPHER, JJ.


2019-07866

[*1]In the Matter of Edwin Madden, Jr., petitioner,
vBruce M. Balter, etc., respondent.


Letitia James, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent.
Edwin Madden, Jr., Ossining, NY, petitioner pro se.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent, Bruce M. Balter, a Justice of the Supreme Court, Kings County, to consider an addendum to the petitioner's motion pursuant to CPL 440.10, made in a criminal action entitled People v Madden , pending in the Supreme Court, Kings County, under Indictment No. 2879/92, 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 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 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.
MASTRO, J.P., CHAMBERS, MALTESE and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


