People ex rel. Barnes v. Smith

70 A.D.2d 764, 417 N.Y.S.2d 539, 1979 N.Y. App. Div. LEXIS 12253

Opinion

— Judgment unanimously affirmed. Memorandum: In affirming we restate the familiar rule that habeas corpus may not "be utilized to review claimed errors already passed upon in an earlier appeal * * * — nor issues which could have been raised on appeal but were not” (People ex rel. Knox v Smith, 60 AD2d 789; see, also, People ex rel. Stephens v Smith, 64 AD2d 1008; People ex rel. Burts v Henderson, 64 AD2d 1009; People ex rel. Fowler v Smith, 60 AD2d 790; People ex rel. White v La Vallee, 47 AD2d 982; People ex rel. Thomas v Mancusi, 42 AD2d 824). Insofar as our decision in People ex rel. Pendleton v Smith (54 AD2d 195) appears to be otherwise, we note that such decision was clearly required by the unusual facts presented in that application. While Pendleton’s appeal was pending, a ruling of the Supreme Court was handed down, which, in effect, nullified his conviction on double jeopardy grounds. That Supreme Court decision was the circumstance which justified habeas corpus relief and permitted our departure, "by reasons of practicality and necessity”, from the traditional orderly posttrial appeal procedure (see People ex rel. Keitt v McMann, 18 NY2d 257, 262). In the present applications, the relators allege only errors, both legal and constitutional, which either were or should have been raised by appeal and their petitions allege no r.eason of "practicality and necessity” why the claimed errors were not raised by direct appeal. The writs, therefore, were properly dismissed. (Appeal from judgment of Wyoming Supreme Court — habeas corpus.) Present — Dillon, P. J., Cardamone, Simons, Callahan and Witmer, JJ.