People ex rel. Barnes v. Fischer

303 A.D.2d 526, 756 N.Y.S.2d 449, 2003 N.Y. App. Div. LEXIS 2338

Opinion

—In a habeas corpus proceeding, the petitioner appeals from an order of the Supreme Court, Westchester County (Lange, J.), entered October 31, 2001, which denied the petition and dismissed the proceeding.

Ordered that the order is affirmed, without costs or disbursements.

A “writ of habeas corpus may not be used to review questions already decided or, absent reasons of practicality and necessity, questions that could have been raised by direct appeal or by a collateral attack in the court of the petitioner’s conviction” (People ex rel. Pearson v Garvin, 211 AD2d 690, 691 [1995]; see People ex rel. Benbow v Scully, 189 AD2d 844, 845 [1993]). “Since the petitioner * * * presents no fundamental constitutional or statutory claim that was not already reviewed on direct appeal or on his CPL 440.10 motion and would warrant departure from traditional, orderly process” (People ex rel. Pearson v Garvin, supra at 691; cf. People ex rel. Keitt v McMann, 18 NY2d 257, 262 [1966]), the Supreme Court properly determined that the petitioner’s application is procedurally barred. Florio, J.P., Crane, Cozier and Rivera, JJ., concur.