People ex rel. Gaines v. Jones

79 A.D.2d 1065, 435 N.Y.S.2d 401, 1981 N.Y. App. Div. LEXIS 9988

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1981
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered April 22, 1980 in Washington County, which denied, without a hearing, a petition for writ of habeas corpus. In 1972, petitioner was convicted of a felony and sentenced to a five-year term of probation. On November 18, 1977, he was adjudged a probation violator and resentenced to an indeterminate term of imprisonment with a maximum of seven years. This sentence was affirmed by the Appellate Division, Second Department (People v Gaines, 71 AD2d 973). Petitioner commenced the present proceeding by a petition for writ of habeas corpus dated March 19, 1980, seeking to gain a reversal of his adjudication as a probation violator and the sentence imposed as a result thereof. Special Term denied his petition without a hearing and this appeal ensued. In support of his petition, petitioner alleged that the application for a declaration of probation delinquency against him and for a bench warrant for his arrest was defective. He also alleged that he was denied effective assistance of counsel on appeal and that the order of commitment to the New York State Department of Correctional Services was inaccurate. Issues already passed upon in an earlier appeal and issues which could have been raised on appeal but were not cannot be reviewed in a habeas corpus proceeding (People ex rel. Knox v Smith, 60 AD2d 789, mot for lv to app den 43 NY2d 647; People ex rel. White v La Vallee, 47 AD2d 982, mot for lv to app den 36 NY2d 647). Upon our review of the record, we find no reasons of practicality and necessity requiring departure from traditional orderly procedure, and, accordingly, the dismissal of the petition by Special Term was proper (see People ex rel. Douglas v Vincent, 50 NY2d 901; People ex rel. Palmer v La Fevre, 72 AD2d 618). The judgment, therefore, should be affirmed. Judgment affirmed, without costs. Sweeney, J. P., Kane, Main, Mikoll and Herlihy, JJ., concur.