Appellate Division: Second Judicial Department

M69910

E/sl

REINALDO E. RIVERA, J.P.

JOSEPH COVELLO

DANIEL D. ANGIOLILLO

WILLIAM E. McCARTHY, JJ.

2008-02113 In the Matter of William Mitchell, petitioner, v James Hudson, etc., et al., respondents.

DECISION & ORDER ON MOTION

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus and prohibition to annul a determination of the respondent James Hudson dated October 9, 2007, and set aside a judgment of conviction rendered October 23, 2001. Application by the petitioner pursuant to CPLR 1101 for permission to prosecute the above-entitled proceeding as a poor person and for the assignment of counsel.

Upon the papers filed in support of the petition and the application, and the papers filed in opposition thereto, it is

ORDERED that the application pursuant to CPLR 1101 for permission to prosecute the above-entitled proceeding as a poor person and for the assignment of counsel is denied on the ground that the allegations of merit contained in the petitioner's affidavit in support of the motion fail to establish that the proceeding is not frivolous (see CPLR 1101[a]); and it is further,

ORDERED that in the event that the filing fee has not been paid within 120 days from the date of this order the proceeding shall be dismissed (see CPLR 1101[d]).

RIVERA, J.P., COVELLO, ANGIOLILLO and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court