People ex rel. Colon v. Deegan

34 A.D.2d 799, 311 N.Y.S.2d 627, 1970 N.Y. App. Div. LEXIS 4933

Opinion

In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Westchester County, entered May 3, 1968, which dismissed the writ. Judgment affirmed, without costs. We affirm the dismissal of the writ on the ground that no reason of practicality or necessity was asserted to justify review of the matters raised by habeas corpus while relator’s appeal from the judgment of conviction was pending and where coram nolis is the proper and more effective remedy for raising issues not appearing on the record (People ex rel. Keitt v. McMann, 18 N Y 2d 257, 262). Relator’s first contention is that the pretrial identification procedure utilized was so unfair as to constitute a denial of due process. This contention has been raised on his pending appeal from the judgment of conviction. His second contention is that his counsel failed to call alibi witnesses whose testimony would have resulted in a different verdict. Treating this contention as an application for a new trial under subdivision 7 of section 465 of the Code of Criminal Procedure, as does relator, we hold that section 463 of the code requires that such application must be made to the trial court. In the alternative, treating relator’s contention as one alleging such incompetence of counsel as to constitute the denial of the right to counsel, we hold that his remedy is by way of coram nolis relief (see Matter of Hogan v. Culkin, 18 N Y 2d 330, 332, n. 1). Hopkins, Acting P. J., Munder, Kleinfeld, Brennan and Benjamin, JJ., concur.