People ex rel. Goss v. Smith

116 A.D.2d 968, 498 N.Y.S.2d 594, 1986 N.Y. App. Div. LEXIS 51737

Opinion

— Judgment unanimously affirmed. Memorandum: Relator was convicted of attempted murder and related offenses. He claims that the indictment underlying these charges should have been dismissed pursuant to CPL 730.50 (4) once an order was issued directing the Commissioner of Mental Hygiene to release or civilly commit him. Relator, however, neither moved to dismiss the indictment on this ground (see, CPL 210.20 [1] [a], [h]; [3]), nor raised the issue on a prior appeal (People v Goss, 88 AD2d 1111). A writ of habeas corpus is inappropriate to review issues which could have been raised on appeal but were not (see, People ex rel. Douglas v Vincent, 67 AD2d 587, 589, affd 50 NY2d 901; People ex rel. Barnes v Smith, 70 AD2d 764, lv denied 48 NY2d 602; cf. People ex rel. Keitt v McMann, 18 NY2d 257, 262). In any event, were we to reach the merits, we would affirm for the reasons stated at Special Term. (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — habeas corpus.) Present — Dillon, P. J., Doerr, Boomer, Green and Pine, JJ.