People ex rel. Lyon v. Leonardo

178 A.D.2d 690, 577 N.Y.S.2d 160, 1991 N.Y. App. Div. LEXIS 15991

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1991
• Status: Published

Opinion

— Appeal from a judgment of the Supreme Court (Hemmett, J.), entered February 20, 1991 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Because habeas corpus is not a proper remedy where the allegations in the petition could have been or were raised either on direct appeal or in a CPL article 440 motion (see, People ex rel. Christianson v Berry, 165 AD2d 961, 962, lv denied 77 NY2d 805; People ex rel. Woodard v Berry, 143 AD2d 457, 458, lv denied 73 NY2d 705), Supreme Court properly denied petitioner’s application for a writ of habeas corpus. Petitioner did in fact appeal from his judgment of conviction, which the Fourth Department affirmed (People v Lyon, 134 AD2d 909, lv denied 71 NY2d 970). In any event, inasmuch as the relief sought in this proceeding is access to certain records or documents allegedly in the possession of the prosecutor, rather than petitioner’s immediate release, habeas corpus is not an appropriate remedy (see, People ex rel. Stewart v People, 143 AD2d 1068, 1069).

Mahoney, P. J., Mikoll, Yesawich Jr., Mercure and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.