People ex rel. Graham v. McClellan

Appellate Division of the Supreme Court of New York

People ex rel. Graham v. McClellan

182 A.D.2d 872, 582 N.Y.S.2d 39, 1992 N.Y. App. Div. LEXIS 5262

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 2, 1992

StatusPublished

Cited by2 cases

This text of 182 A.D.2d 872 (People ex rel. Graham v. McClellan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Graham v. McClellan, 182 A.D.2d 872, 582 N.Y.S.2d 39, 1992 N.Y. App. Div. LEXIS 5262 (N.Y. Ct. App. 1992).

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Opinion

Appeal from a judgment of the Supreme Court (Swartwood, J.), entered December 7, 1990 in Chemung County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this habeas corpus proceeding arguing that his confession should have been suppressed as the product of a warrantless arrest. Because a writ of habeas corpus is not generally available to raise issues which were or could have been raised on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Woodard v Berry, 143 AD2d 457, 458, lv denied 73 NY2d 705; People ex rel. Rosado v Miles, 138 AD2d 808), Supreme Court properly denied petitioner’s application for a writ of habeas corpus. In addition, we see no reason to depart from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 AD2d 850, lv denied [873]*87375 NY2d 702; People ex rel. Avery v LeFevre, 105 AD2d 1015). In any event, even if petitioner’s claim was meritorious, he is not entitled to immediate release; therefore, habeas corpus is not an appropriate remedy (see, People ex rel. Richards v Reid, 117 AD2d 695; People ex rel. Williams v Scully, 107 AD2d 729, 730).

Weiss, P. J., Crew III, Mahoney, Casey and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Swartwood, J.), entered December 7, 1990 in Chemung County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this habeas corpus proceeding arguing that his confession should have been suppressed as the product of a warrantless arrest. Because a writ of habeas corpus is not generally available to raise issues which were or could have been raised on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Woodard v Berry, 143 AD2d 457, 458, lv denied 73 NY2d 705; People ex rel. Rosado v Miles, 138 AD2d 808), Supreme Court properly denied petitioner’s application for a writ of habeas corpus. In addition, we see no reason to depart from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 AD2d 850, lv denied [873]*87375 NY2d 702; People ex rel. Avery v LeFevre, 105 AD2d 1015). In any event, even if petitioner’s claim was meritorious, he is not entitled to immediate release; therefore, habeas corpus is not an appropriate remedy (see, People ex rel. Richards v Reid, 117 AD2d 695; People ex rel. Williams v Scully, 107 AD2d 729, 730).

Weiss, P. J., Crew III, Mahoney, Casey and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

182 A.D.2d 872, 582 N.Y.S.2d 39, 1992 N.Y. App. Div. LEXIS 5262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-graham-v-mcclellan-nyappdiv-1992.

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