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

Appellate Division of the Supreme Court of New York

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

Appellate Division of the Supreme Court of the State of New York·Decided August 22, 1991·Published·Cited by 4 cases

Opinion

— Appeal from a judgment of the Supreme Court (Harris, J.), entered October 3, 1990 in Albany County, which denied petitioner’s application [962]*962for 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.

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— Appeal from a judgment of the Supreme Court (Harris, J.), entered October 3, 1990 in Albany County, which denied petitioner’s application [962]*962for 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.

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 (N.Y. Ct. App. 1991).

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175 A.D.2d 961 (People ex rel. Bressette v. Superintendent of Great Meadow Correctional Facility) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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