Chapman v. Patsalos (173 A.D.2d 818, 1991)

Proceeding pursuant to CPLR article 78 (1) to vacate a judgment of the Supreme Court, Orange County, rendered November 13, 1990, (2) to dismiss Orange County Indictment No. 196/89, and (3) to release the petitioner from the custody of the New York State Department of Correctional Services.

Adjudged that the proceeding is dismissed, without costs or disbursements.

"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged —acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564, 569; accord, Matter of Rush v Mordue, 68 NY2d 348, 353). Likewise, the extraordinary remedy of mandamus lies to compel the. performance of a purely ministerial act only where there is a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). Inasmuch as the petitioner seeks direct review of his judgment of conviction under the guise of this special proceeding, the relief requested is clearly inappropriate and the proceeding is dismissed. Thompson, J. P., Brown, Fiber and Harwood, JJ., concur.