People ex rel. McAllister v. McMann

24 A.D.2d 659, 261 N.Y.S.2d 90, 1965 N.Y. App. Div. LEXIS 3644

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1965
• Status: Published

Opinion

Per Curiam.

Appeal from a judgment of the County Court of Clinton County entered July 7, 1964, which denied without a hearing a petition for a writ of habeas corpus. The relator challenges his detention on the ground that neither he nor his counsel was present when the sentence he is serving was pronounced. The Attorney-General has submitted a certified copy of the minutes of the Cleric of the court which state on January 22, 1952, the “ defendant [relator-appellant] personally appeared, with counsel, and, after first being duly asked if he had any legal cause to show why the judgment of the law should not be pronounced against him, was this day duly sentenced ”. A copy of the minutes and of the accompanying letter of the Attorney-General were forwarded to the appellant. The appellant filed a reply affidavit with evidentiary matter annexed to his affidavit and with other evidentiary matter annexed to his brief incorporated in his affidavit by reference. The minutes of the Clerk of the court may properly be received and considered (Ripley v. Storer, 309 N. Y. 506, 518; People ex rel. Williams v. Murphy, 6 N Y 2d 234, 237) and they conclusively refute both the contention and the evidence of the relator. Moreover, following service of notice of appeal from the judgment now before us, the appellant again applied for a writ of habeas corpus on the same grounds and without mention of the prior application for the same relief. A writ was issued, a hearing was had, the writ was dismissed, a notice of appeal was served and this appeal is now pending and being prosecuted by assigned counsel. Judgment affirmed, without costs. Herlihy, J. P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.