People ex rel. Lester v. Scully

191 A.D.2d 664, 595 N.Y.S.2d 227

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1993
• Status: Published

Opinion

—In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Benson, J.), dated January 16, 1992, which denied the writ without a hearing.

Ordered that the judgment is affirmed, without costs or disbursements.

The Supreme Court properly denied the petition based on the failure to set forth, inter alia, whether any appeal had been taken from any order by virtue of which the petitioner was detained (see, CPLR 7002 [c] [5]).

In any event, a writ of habeas corpus does not lie under these circumstances where the petitioner neither moved to dismiss the indictment on the grounds now asserted nor raised the issue on a prior appeal (People ex rel. Goss v Smith, 69 NY2d 727). Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.