People ex rel. Gasper v. Sullivan

164 A.D.2d 926

Opinion

In a habeas corpus proceeding, the petitioner appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), dated January 23, 1989, which dismissed the proceeding. The appeal brings up for review so much of an order of the same court, dated February 23, 1989, as, upon granting reargument, adhered to the original determination.

Ordered that the appeal from the order dated January 23, 1989, is dismissed, without costs or disbursements, as that order was superseded by the order dated February 23, 1989, made upon reargument (see, Gold v Town of N. Hempstead, 142 AD2d 550); and it is further,

Ordered that the order dated February 23, 1989, is affirmed insofar as reviewed, without costs or disbursements.

The petitioner’s claim that he was wrongfully deprived of his right to appear and testify before the Grand Jury (see, CPL 190.50 [5]) and his related claim that he was deprived of the effective assistance of counsel during the time the case was presented to the Grand Jury may be raised on a direct appeal from the judgment of conviction, or by collateral motion before the court which rendered the judgment of conviction (cf., People v Jackson, 119 AD2d 587; see also, People v Brown, 45 NY2d 852; CPL 440.10 [1]). Therefore, the Supreme Court in Westchester County, where the petitioner is presently incarcerated, properly dismissed this proceeding for a writ of habeas corpus (cf., People ex rel. Keitt v McMann, 18 NY2d 257; see, People ex rel. Nelson v Scully, 119 AD2d 709). Brown, J. P., Hooper, Sullivan and Harwood, JJ., concur.