People ex rel. Burts v. Henderson

64 A.D.2d 1009, 409 N.Y.S.2d 288, 1978 N.Y. App. Div. LEXIS 13008

Opinion

—Judgment unanimously affirmed. Memorandum: On this appeal from a dismissal of his writ of habeas corpus without a hearing, relator contends that he was unlawfully tried and convicted, in absentia, of second degree assault and that because of the delay of over one year by the Public Defender in preparing his appeal from the judgment of conviction, habeas corpus was the proper remedy in which to assert the alleged violations of his statutory and constitutional rights. "Departure from traditional orderly proceedings, such as appeal, should be permitted only when dictated * * * by reason of practicality and necessity” (People ex rel. Keitt v McMann, 18 NY2d 257, 262; see, also, People ex rel. Jenkins v Smith, 58 AD2d 1033). Inasmuch as relator’s appeal from his judgment of conviction is presently before this court, his writ of habeas corpus was properly dismissed (People ex rel. Schaurer v Fogg, 59 AD2d 1072; cf. People ex rel. Lee v Smith, 58 AD2d 987). (Appeal from judgment of Cayuga Supreme Court—habeas corpus.) Present—Moule, J. P., Cardamone, Dillon, Hancock, Jr., and Schnepp, JJ.