People ex rel. Ellis v. LeFevre

70 A.D.2d 967, 417 N.Y.S.2d 139, 1979 N.Y. App. Div. LEXIS 12600

Opinion

— Appeal from a judgment of the Supreme Court at Special Term, entered December 11, 1978 in Clinton County, which denied appellant’s application for a writ of habeas corpus. On September 15, 1977, appellant was sentenced in New York County Supreme Court to an indeterminate term of 7 Vi to 15 years following his conviction, after trial, of manslaughter in the first degree. Appellant applied for a writ of habeas corpus in November, 1978. In his petition, appellant asserted that an appeal was then pending in the Appellate Division, First Department, from the judgment of conviction being challenged in the present proceeding. As the Court of Appeals has stated, "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). We find no such reason present herein, and, therefore, in view of appellant’s pending appeal, the petition for a writ of habeas corpus was properly dismissed (People ex rel. Burts v Henderson, 64 AD2d 1009; People ex rel. McChesney v Draxler, 59 AD2d 952; People ex rel. Spindel v La Vallee, 33 AD2d 968). Judgment affirmed, without costs. Sweeney, J. P., Kane, Staley, Jr., Main and Mikoll, JJ., concur.