People ex rel. Burr v. Clark

278 A.D.2d 938, 718 N.Y.S.2d 771, 2000 N.Y. App. Div. LEXIS 13453

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2000
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: The petitions seeking writs of habeas corpus were properly dismissed. Contrary to petitioner’s contention, an evidentiary hearing was not required because no triable issue of fact was raised (see, People ex rel. Robertson v New York State Div. of Parole, 67 NY2d 197, 203; see, People ex rel. Lewis v Meloni, 233 AD2d 947, 948, lv denied 89 NY2d 807). Petitioner contends that he is being unlawfully detained because the order of commitment does not indicate that he was convicted of criminal possession of a weapon in the fourth degree, although it lists a sentence of one year for that conviction. Irregularities or defects in an order of commitment would not entitle petitioner to immediate release where, as here, there is a valid judgment of conviction underlying the commitment (see, People ex rel. Harris v Lindsay, 21 AD2d 102, 106, affd 15 NY2d 751). Further, habeas corpus relief is not available to review a sentence that has expired (see, People ex rel. Ganci v Henderson, 51 AD2d 888, lv denied 38 NY2d 711). (Appeal from Judgment of Supreme Court, Erie County, LaMendola, J. — Habeas Corpus.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.