People ex rel. Mammarello v. Donnelly

286 A.D.2d 937, 731 N.Y.S.2d 417, 2001 N.Y. App. Div. LEXIS 9051

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2001
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: The contention raised in the petition seeking a writ of habeas corpus could have been raised on direct appeal or by motion pursuant to CPL 440.10 and thus Supreme Court properly dismissed the petition (see, People ex rel. Mancuso v Herbert, 256 AD2d 1158, 1159, lv denied 93 NY2d 809). Furthermore, habeas corpus relief is inappropriate because the only remedy to which petitioner would be entitled would be a new trial (see, People ex rel. Kaplan v Commissioner of Correction of City of N. Y., 60 NY2d 648, 649). Petitioner’s further contention on appeal was not raised in the petition and therefore is not properly before us (see, People ex rel. Pangburn v Hodges, 281 AD2d 973, lv denied 96 NY2d 713). (Appeal from Judgment of Supreme Court, Erie County, O’Donnell, J. — Habeas Corpus.) Present — Green, J. P., Scudder, Kehoe, Gorski and Lawton, JJ.