Launcelot T. v. Mullen , 701 N.Y.S.2d 57 ( 1999 )

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus (1) to compel the respondent Michael F. Mullen, a Justice of the Supreme Court, Suffolk County, to provide the petitioner with a rehearing and review before a jury of an order of the Supreme Court, Suffolk County (Jones, J.), dated February 10, 1999, which authorized the petitioner’s continued psychiatric confinement, and (2) to vacate an order of the same court dated March 31, 1999 (Mullen, J.), which denied the petitioner’s application for a rehearing and review before a jury pursuant to CPL 330.20 (16), Mental Hygiene Law § 9.35, and 14 NYCRR 541.13 (b).

Adjudged that the petition is granted, without costs or disbursements, the order dated March 31, 1999, is vacated, and the matter is remitted to the Supreme Court, Suffolk County, for a rehearing and review before a jury.

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, a person who was found to be not responsible for the crime of murder in the second degree by reason of mental disease or defect, has a clear legal right to jury review of the issue of whether he is still mentally ill and subject to the continued deprivation of liberty (see, CPL 330.20 [16], Mental Hygiene Law § 9.35; 14 NYCRR 541.13 [b]; see generally, Matter of Barber v Rochester Psychiatric Ctr., 250 AD2d 87; Matter of Robert C. v Wack, 167 Misc 2d 677; Matter of Daniel R. v Wack, 167 Misc 2d 74; Matter of Maureen A. v Wack, 153 Misc 2d 600). O’Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.