People ex rel. Abdullah v. Walker

199 A.D.2d 1074, 608 N.Y.S.2d 902, 1993 N.Y. App. Div. LEXIS 12756

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1993
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Habeas corpus relief is not a proper remedy where the issues raised in the petition were, or could have been, raised on direct appeal or by a CPL article 440 motion (see, People ex rel. Willette v Coughlin, 184 AD2d 926, lv denied 80 NY2d 759; People ex rel. Van Patten v Walker, 174 AD2d 1058, lv denied 78 NY2d 859). Further, Supreme Court did not err in dismissing the petition without first requiring respondents to serve a return. A return is required only after the petition has been granted and the court has issued a writ of habeas corpus (see, CPLR 7006 [a]). (Appeal from Judgment of Supreme Court, Cayuga County, Contiguglia, J.—Habeas Corpus.) Present—Denman, P. J., Green, Balio, Lawton and Boehm, JJ.