People ex rel. Hammock v. Meloni

233 A.D.2d 929, 649 N.Y.S.2d 873, 1996 N.Y. App. Div. LEXIS 13448

Opinion

Judgment unanimously affirmed without costs. Memorandum: After relator filed a notice of appeal from a decision dated June 9, 1994, a judgment was entered on that decision. We exercise our discretion to treat the appeal as taken from that judgment (see, CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988).

Supreme Court properly dismissed, without a hearing, the petition seeking a writ of habeas corpus. The contention of relator that double jeopardy attached to bar his retrial is an issue that may be raised on relator’s direct appeal from the judgment of conviction. Moreover, there is no basis to warrant "our departure 'by reasons of practicality and necessity’, from the traditional orderly posttrial appeal procedure” (People ex rel. Barnes v Smith, 70 AD2d 764, lv denied 48 NY2d 602, quoting People ex rel. Keitt v McMann, 18 NY2d 257, 262; see also, People ex rel. Webb v Leonardo, 136 AD2d 840, 841). (Appeal from Judgment of Supreme Court, Monroe County, Rosenbloom, J.—Habeas Corpus.) Present—Green, J. P., Pine, Callahan, Doerr and Davis, JJ.