People ex rel. Marsh v. Miller

Appellate Division of the Supreme Court of New York

People ex rel. Marsh v. Miller

275 A.D.2d 822, 713 N.Y.S.2d 501, 2000 N.Y. App. Div. LEXIS 9193

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 14, 2000

StatusPublished

Cited by2 cases

This text of 275 A.D.2d 822 (People ex rel. Marsh v. Miller) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Marsh v. Miller, 275 A.D.2d 822, 713 N.Y.S.2d 501, 2000 N.Y. App. Div. LEXIS 9193 (N.Y. Ct. App. 2000).

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Opinion

—Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered December 27, 1999 in Ulster County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that he is unlawfully detained because the indictment was jurisdictionally defective and County Court lacked geographic jurisdiction, properly referred to as venue. Supreme Court dismissed petitioner’s application and we affirm. The record reveals that petitioner could have raised and/or did raise these issues either on direct appeal from the judgment of conviction or by way of a motion pursuant to CPL article 440 in the court of original jurisdiction (see, People ex rel. Caroselli v Goord, 268 AD2d 827, lv denied 94 NY2d 765; People ex rel. Moore v Scully, 189 AD2d 845). Moreover, even if he was successful in his arguments, petitioner would be entitled to a new trial but not to immediate release from detention (see, People ex rel. Douglas v Vincent, 50 NY2d 901, 903). Accordingly, habeas corpus relief is unavailable to petitioner.

[823]*823Cardona, P. J., Crew III, Spain, Graffeo and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered December 27, 1999 in Ulster County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that he is unlawfully detained because the indictment was jurisdictionally defective and County Court lacked geographic jurisdiction, properly referred to as venue. Supreme Court dismissed petitioner’s application and we affirm. The record reveals that petitioner could have raised and/or did raise these issues either on direct appeal from the judgment of conviction or by way of a motion pursuant to CPL article 440 in the court of original jurisdiction (see, People ex rel. Caroselli v Goord, 268 AD2d 827, lv denied 94 NY2d 765; People ex rel. Moore v Scully, 189 AD2d 845). Moreover, even if he was successful in his arguments, petitioner would be entitled to a new trial but not to immediate release from detention (see, People ex rel. Douglas v Vincent, 50 NY2d 901, 903). Accordingly, habeas corpus relief is unavailable to petitioner.

[823]*823Cardona, P. J., Crew III, Spain, Graffeo and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

275 A.D.2d 822, 713 N.Y.S.2d 501, 2000 N.Y. App. Div. LEXIS 9193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-marsh-v-miller-nyappdiv-2000.

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