People ex rel. Falaq v. Dalsheim

122 A.D.2d 93, 504 N.Y.S.2d 236, 1986 N.Y. App. Div. LEXIS 59163

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1986
• Status: Published

Opinion

— In a habeas corpus proceeding, the petitioner appeals from an order of the Supreme Court, Dutchess County (Marlow, J.), dated April 30, 1985, which, upon consent of the parties, transferred the proceeding to Supreme Court, Bronx County, for treatment as an application for relief pursuant to CPL article 440. (The petitioner’s notice of appeal from a decision of the same court, dated January 25, 1985, is treated as a premature notice of appeal from the order.)

Appeal dismissed, without costs or disbursements.

No appeal lies from an order entered upon consent (see, Baecher v Baecher, 95 AD2d 841; People v Stewart, 83 AD2d 713), nor from an intermediate order in a habeas corpus proceeding (see, CPLR 7011; People ex rel. Johnson v Romano, 108 AD2d 888; People ex rel. Ardito v Trujillo, 88 AD2d 1002). Moreover, since a direct appeal from the judgment of conviction is currently pending and since the issues raised by the petitioner with respect to the propriety of the sentence may be reviewed pursuant to CPL article 440 in the court where he was convicted, habeas corpus would not have been an appropriate remedy (see, People ex rel. Frazier v Coombe, 87 AD2d 904). Thompson, J. P., Rubin, Eiber and Spatt, JJ., concur.