People ex rel. McAllister v. McMann

25 A.D.2d 460, 266 N.Y.S.2d 93, 1966 N.Y. App. Div. LEXIS 5173
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 13, 1966
StatusPublished
Cited by1 cases

This text of 25 A.D.2d 460 (People ex rel. McAllister v. McMann) 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. McAllister v. McMann, 25 A.D.2d 460, 266 N.Y.S.2d 93, 1966 N.Y. App. Div. LEXIS 5173 (N.Y. Ct. App. 1966).

Opinion

Herlihy, J.

This is an appeal from an order which dismissed, following a hearing, a writ of habeas corpus. First, the contention that the appellant was not present at the time of his sentence was determined by this court on a prior appeal (see 24 A D 2d 659). Second, the minutes of the Clerk of the court at the time of sentence conclusively demonstrate that section 480 of the Code of Criminal Procedure was complied with by the court. Third, the appellant pleaded guilty on December 6, 1951 and the matter was adjourned for sentencing to January 21, 1952 at which time the court, after suggesting the terms of the sentence, put the matter over until the following day, January 22, 1952, when the minutes of the court stated: “The following defendant [i.e., the appellant [461]*461here] 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 sentenced ”. The appellant’s contentions are without merit. We have decided the merits raised on this appeal but we note that proeedurally the application of the appellant for a writ of habeas corpus was fatally defective for failure to comply with CPLR. 7002 (subd. [c], par. 6) which requires the appellant to recite in his petition the history of his prior applications for similar relief. (See People ex rel. Dunn v. McMann, 23 A D 2d 510.) Judgment affirmed, without costs.

Gibson, P. J., Reynolds, Aulisi and Hamm, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Malik v. Herbert
56 F. App'x 538 (Second Circuit, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
25 A.D.2d 460, 266 N.Y.S.2d 93, 1966 N.Y. App. Div. LEXIS 5173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-mcallister-v-mcmann-nyappdiv-1966.