People ex rel. Dudley v. Kelly

128 A.D.2d 981, 513 N.Y.S.2d 292, 1987 N.Y. App. Div. LEXIS 44635

Opinion

Kane, J.

Appeal from a judgment of the Supreme Court (Vogt, J.), entered July 3, 1986 in Ulster County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner seeks, by writ of habeas corpus, to be released or given "civil status in a mental institution” on the ground that he was insane at the time of his trial. In 1967, petitioner was convicted of the crime of murder in the first degree and was sentenced to life imprisonment. His conviction was affirmed by the First Department and the Court of Appeals (People v Dudley, 32 AD2d 741, affd 26 NY2d 903). The issue of his sanity at the time of trial was apparently not raised on appeal. However, petitioner subsequently moved to vacate his judgment of conviction pursuant to CPL article 440 upon the same issue presented here.

Since habeas corpus is not appropriate to raise a matter which could have been raised on direct appeal of a conviction (People ex rel. Douglas v Vincent, 50 NY2d 901; People ex rel. Knox v Smith, 60 AD2d 789, Iv denied 43 NY2d 647), or reviewed pursuant to a CPL article 440 application in the court of conviction (People ex rel. Scott v Superintendent, Great Meadow Correctional Facility, 112 AD2d 502, appeal dismissed 67 NY2d 646; People ex rel. Thomas v LeFevre, 102 AD2d 925, Iv denied 63 NY2d 604), Supreme Court properly denied the instant application (see, People v Brown, 13 NY2d 201, cert denied 376 US 972). The judgment should therefore be affirmed.

Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.