People ex rel. Lombardi v. Mancusi

27 A.D.2d 791, 1967 N.Y. App. Div. LEXIS 4843

Opinion

Order unanimously affirmed. Memorandum: Relator’s conviction was affirmed by the Appellate Division, First Department (25 A D 2d 718) and on application to the court the remittitur was amended to recite that upon the appeal there were presented and necessarily passed upon the appellant’s contentions that his rights under the 4th, 5th, 6th and 14th Amendments to the United States Constitution were violated (25 A D 2d 823). It appears that leave to appeal to the Court of Appeals was granted and that such appeal is pending. As was pointed out in People ex rel. Keitt v. McMann (18 N Y 2d 257, 262): '• Departure from traditional orderly proceedings, such as appeal, should be permitted only when dictated * * * by reason of practicality and necessity." This not being a case where no other corrective procedure is available to relator habeas corpus is not a proper remedy. (See Matter of Morhous v. New York Supreme Ct., 293 N. Y. 131.) (Appeal from order of Wyoming County Court, dismissing writ of habeas corpus, following a hearing.) Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.