—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the trial court to grant the petitioner’s motion pursuant to CPL 440.10 to vacate a judgment of conviction rendered against him on September 2, 1993, in a criminal action entitled People v Woodard (Kings County Ind. No. 14634/ 92), and application to proceed as a poor person and for the assignment of counsel.
Cross motion by the respondent Anne Feldman to dismiss the proceeding.
Upon the petition and papers filed in support of the proceeding and the application and the papers filed in opposition or relation thereto and in support of the cross motion, it is
Ordered that the application to proceed as a poor person and for assignment of counsel is granted to the extent that the filing fee required by CPLR 8022 (b) and 22 NYCRR 670.21 is waived and is otherwise denied; and it is further,
Ordered that the cross motion is granted; 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 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. Rosenblatt, J. P., Sullivan, Altman and Florio, JJ., concur.