People ex rel. Franza v. Stinson

228 A.D.2d 843, 644 N.Y.2d 90, 644 N.Y.S.2d 90, 1996 N.Y. App. Div. LEXIS 6677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1996
• Status: Published

Opinion

Petitioner commenced this proceeding pursuant to CPLR article 70 challenging the failure of Supreme Court, New York County to accept a CPL article 440 motion which he attempted to file. Supreme Court, finding that habeas corpus relief was not the proper remedy under the circumstances, denied the petition. Petitioner appeals. It is well settled that habeas corpus relief is only available where a petitioner is entitled to immediate release from custody (see, People ex rel. Pratt v Bowen, 204 AD2d 838; People ex rel. Fisher v Leonardo, 200 AD2d 844, lv denied 83 NY2d 754). In the case at bar, petitioner’s complaint is with the failure of Supreme Court, New York County to accept his CPL article 440 motion for filing. This has nothing to do with the legality of his detention. Accordingly, we agree with Supreme Court that habeas corpus is not the appropriate remedy and find that it properly denied the petition.

Cardona, P. J., Crew III, White, Casey and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.