People ex rel. Bressette v. Superintendent of Great Meadow Correctional Facility

175 A.D.2d 961, 573 N.Y.S.2d 542, 1991 N.Y. App. Div. LEXIS 11160

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 1991
• Status: Published

Opinion

— Appeal from a judgment of the Supreme Court (Harris, J.), entered October 3, 1990 in Albany County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Initially we note that petitioner has been released on parole, thus rendering moot this habeas corpus proceeding (see, People ex rel. Doyle v Fischer, 159 AD2d 208; People ex rel. Kitchen v Sullivan, 121 AD2d 415). In any event, petitioner’s allegation that his conviction was in contravention of his 5th Amendment right against self-incrimination was or could have been raised on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Rosado v Miles, 138 AD2d 808), and we see no reason to depart from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 AD2d 850, lv denied 75 NY2d 702). Finally, as Supreme Court noted, habeas corpus may not be used to collaterally attack a judgment of conviction on constitutional grounds (see, People ex rel. Sales v LeFevre, 93 AD2d 945, 946, lv denied 60 NY2d 558).

Mahoney, P. J., Weiss, Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.