People ex rel. Fisher v. Leonardo

Appellate Division of the Supreme Court of New York

People ex rel. Fisher v. Leonardo

200 A.D.2d 844, 606 N.Y.S.2d 802, 1994 N.Y. App. Div. LEXIS 215

Appellate Division of the Supreme Court of the State of New York·Decided January 13, 1994·Published·Cited by 4 cases

Opinion

—Appeal from a judgment of the Supreme Court (Berke, J.), entered February 18, 1993 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Because habeas corpus is not a proper remedy where the allegations in the petition could have been raised on direct appeal or by way of a CPL article 440 motion, Supreme Court properly denied petitioner’s application for a writ of habeas corpus. Petitioner has given no reason why we should now depart from traditional orderly procedure, especially in light of the fact that his direct appeal is now pending before the First Department. Finally, inasmuch as petitioner’s remedy would be a new trial rather than his immediate release from prison, habeas corpus is not an appropriate remedy.

Mikoll, J. P., Crew III, White, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Berke, J.), entered February 18, 1993 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Because habeas corpus is not a proper remedy where the allegations in the petition could have been raised on direct appeal or by way of a CPL article 440 motion, Supreme Court properly denied petitioner’s application for a writ of habeas corpus. Petitioner has given no reason why we should now depart from traditional orderly procedure, especially in light of the fact that his direct appeal is now pending before the First Department. Finally, inasmuch as petitioner’s remedy would be a new trial rather than his immediate release from prison, habeas corpus is not an appropriate remedy.

Mikoll, J. P., Crew III, White, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.

People ex rel. Fisher v. Leonardo, 200 A.D.2d 844, 606 N.Y.S.2d 802, 1994 N.Y. App. Div. LEXIS 215 (N.Y. Ct. App. 1994).

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Opinion

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