People ex rel. Hardy v. Kuhlmann

183 A.D.2d 968, 583 N.Y.S.2d 560, 1992 N.Y. App. Div. LEXIS 6681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1992
• Status: Published

Opinion

— Appeal from a judgment of the Supreme Court (Torraca, J.), entered June 5, 1991 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, after a hearing.

We reject petitioner’s contention that Supreme Court erred in dismissing his application for a writ of habeas corpus. In doing so, we initially note that habeas corpus is not a proper procedure to raise issues which were or could have been raised on direct appeal or pursuant to CPL article 440 (see, People ex rel. Woodard v Berry, 143 AD2d 457, lv denied 73 NY2d 705). Petitioner’s conviction has already been appealed and affirmed (see, People v Hardy, 146 AD2d 800, lv denied 73 NY2d 1015), and the allegations in this proceeding concerning the failure to inform him of the existence of a jury note were raised and rejected in at least one of his postverdict CPL article 440 motions (see, e.g., Matter of Williams v Henderson, 124 AD2d 994, lv denied 69 NY2d 605). We see no reason to depart from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 AD2d 850, lv denied 75 NY2d 702) and in any event, based on the record before us, petitioner’s arguments are, as Supreme Court found, without merit (see, People ex rel. Rosado v Miles, 138 AD2d 808). Finally, petitioner’s procedural arguments concerning Supreme Court’s decision have been reviewed and rejected as being without merit.

Weiss, P. J, Mikoll, Levine, Mercure and Casey, JJ, concur. Ordered that the judgment is affirmed, without costs.