Kassebaum v. al-Rahman

Appellate Division of the Supreme Court of New York

Kassebaum v. al-Rahman

212 A.D.2d 482, 624 N.Y.S.2d 573

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 28, 1995

StatusPublished

Cited by5 cases

This text of 212 A.D.2d 482 (Kassebaum v. al-Rahman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kassebaum v. al-Rahman, 212 A.D.2d 482, 624 N.Y.S.2d 573 (N.Y. Ct. App. 1995).

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Opinion

—Judgment, Supreme Court, New York County (George Roberts, J.), entered October 21, 1993, which denied petitioner’s application for a writ of habeas corpus and dismissed the proceeding, insofar as it was based on the ground that petitioner was denied his constitutional and statutory (CPL 30.20) right to a speedy trial, [483]*483unanimously affirmed. Appeal from the same judgment, insofar as it denied petitioner’s application on the ground that he was denied reasonable bail, dismissed as moot.

Once a trial has commenced, a petition for a writ of habeas corpus brought on the ground of denial of the right to a speedy trial should generally be denied (People ex rel. McDonald v Warden, 34 NY2d 554), since the speedy trial claim may be raised on the direct appeal (see also, People ex rel. Harrison v Greco, 38 NY2d 1025). Thus, insofar as petitioner’s application was based on this ground, we find that the denial should be affirmed. Contrary to petitioner’s contention, affirmance on this ground is warranted regardless of whether the petition was originally brought and decided prior to commencement of trial (see, People ex rel. McDonald v Warden, 34 NY2d 554, supra, affg 43 AD2d 857). Since petitioner has already been tried and found guilty of conspiracy in the second degree and attempted criminal possession of a controlled substance in the first degree, insofar as his application was based on an alleged denial of reasonable pretrial bail or the alleged conditions of his pretrial incarceration, it is now moot (see, People ex rel. Chakwin v Warden, 63 NY2d 120, 125; People ex rel. Doggett v Levy, 201 AD2d 261, appeal dismissed 83 NY2d 905).

Motion for reargument granted and, upon reargument, the unpublished decision and order of this Court entered on November 10, 1994 (Appeal No. 53059) is recalled and vacated, and a new decision and order substituted therefor. Concur-Ellerin, J. P., Rubin, Ross and Nardelli, JJ.

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—Judgment, Supreme Court, New York County (George Roberts, J.), entered October 21, 1993, which denied petitioner’s application for a writ of habeas corpus and dismissed the proceeding, insofar as it was based on the ground that petitioner was denied his constitutional and statutory (CPL 30.20) right to a speedy trial, [483]*483unanimously affirmed. Appeal from the same judgment, insofar as it denied petitioner’s application on the ground that he was denied reasonable bail, dismissed as moot.

Once a trial has commenced, a petition for a writ of habeas corpus brought on the ground of denial of the right to a speedy trial should generally be denied (People ex rel. McDonald v Warden, 34 NY2d 554), since the speedy trial claim may be raised on the direct appeal (see also, People ex rel. Harrison v Greco, 38 NY2d 1025). Thus, insofar as petitioner’s application was based on this ground, we find that the denial should be affirmed. Contrary to petitioner’s contention, affirmance on this ground is warranted regardless of whether the petition was originally brought and decided prior to commencement of trial (see, People ex rel. McDonald v Warden, 34 NY2d 554, supra, affg 43 AD2d 857). Since petitioner has already been tried and found guilty of conspiracy in the second degree and attempted criminal possession of a controlled substance in the first degree, insofar as his application was based on an alleged denial of reasonable pretrial bail or the alleged conditions of his pretrial incarceration, it is now moot (see, People ex rel. Chakwin v Warden, 63 NY2d 120, 125; People ex rel. Doggett v Levy, 201 AD2d 261, appeal dismissed 83 NY2d 905).

Motion for reargument granted and, upon reargument, the unpublished decision and order of this Court entered on November 10, 1994 (Appeal No. 53059) is recalled and vacated, and a new decision and order substituted therefor. Concur-Ellerin, J. P., Rubin, Ross and Nardelli, JJ.

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212 A.D.2d 482, 624 N.Y.S.2d 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kassebaum-v-al-rahman-nyappdiv-1995.

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