People ex rel. Mancuso v. Herbert

256 A.D.2d 1158, 684 N.Y.S.2d 103, 1998 N.Y. App. Div. LEXIS 14285

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1998
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied without a hearing the petition seeking a writ of habeas corpus. A petition should be denied without a hearing “[i]f it appears from the petition or the documents annexed thereto that the person is not illegally detained” (CPLR 7003 [a]). The issues raised by relator concerning the alleged Brady and Rosario violations and the alleged defective Grand Jury proceeding were, or could have been, raised on direct appeal or by a CPL article 440 motion (see, People ex rel. Abdullah v Walker, 199 AD2d 1074, lv denied 83 NY2d 752). In any event, the court properly determined that those issues are meritless (see, People ex rel. Rosado v Miles, 138 AD2d 808). Relator’s first and second contentions were raised in CPL article 440 motions and rejected by the Second Department (People v Mancuso, 232 AD2d 658, lv denied 89 NY2d 944) and in an unpublished decision by Supreme Court, Kings County. The court properly found that relator’s third contention regarding an alleged conspiracy between a Supreme Court, Kings County, Justice and an Assistant District Attorney was based on nothing more than speculation. Because a hearing was not held, the contention of relator that he was improperly denied a transcript lacks merit. (Appeal from Judgment of Supreme Court, Erie County, Gorski, J.— Habeas Corpus.) Present — Denman, P. J., Green, Hayes, Balio and Boehm, JJ.