People ex rel. Griffin v. LeFevre

89 A.D.2d 676, 454 N.Y.S.2d 30, 1982 N.Y. App. Div. LEXIS 17803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1982
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term (Graves, J.), entered August 24,1981 in Clinton County, which dismissed petitioner’s application for a writ of habeas corpus after a hearing. Petitioner seeks a writ of habeas corpus alleging errors in his conviction for robbery in the first and second degrees and unlawful possession of stolen property. The errors alleged by petitioner are now on review in a direct appeal from his judgment of conviction. Review by way of habeas corpus is generally not available when an appeal of the underlying conviction is pending (People ex rel. Keitt v McMann, 18 NY2d 257; People ex rel. Ellis v LeFevre, 70 AD2d 967). The writ could not in any event be sustained in view of the fact that petitioner is also incarcerated after conviction for escape in the second degree, which conviction is not being challenged by him in these proceedings. Petitioner would, therefore, not be entitled to relief by way of habeas corpus since he is otherwise legally detained. Judgment affirmed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.