People ex rel. Carter v. Miller

261 A.D.2d 674, 691 N.Y.S.2d 193, 1999 N.Y. App. Div. LEXIS 4704

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1999
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Donohue, J.), entered April 10, 1998 in Ulster County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this habeas corpus proceeding contending, inter alia, that he was denied due process because the original felony complaint was not dismissed before he was tried on the indictment, he was denied the right to testify before the Grand Jury and the evidence was insufficient to support the judgment of conviction. Supreme Court dismissed the petition and we affirm.

Because petitioner’s claims were or could have been raised in his direct appeal or in his CPL article 440 motions, habeas corpus relief is unavailable in this case (see, People ex rel. Moore v Miller, 244 AD2d 735, lv denied 91 NY2d 808). Furthermore, we find no extraordinary circumstances to warrant a departure from traditional orderly procedure. In any event, even if the issues raised by petitioner were meritorious, habeas corpus relief would be inappropriate inasmuch as he would not be entitled to immediate release (see generally, People ex rel. Merriweather v Miller, 243 AD2d 872, lv denied 91 NY2d 804).

Mercure, J. P., Crew III, Yesawich Jr., Peters and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.