People ex rel. McNair v. Bantum

123 A.D.2d 800, 507 N.Y.S.2d 275, 1986 N.Y. App. Div. LEXIS 60941

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1986
• Status: Published

Opinion

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Kings County (Tomei, J.), dated October 7,1981, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioner was convicted on July 9, 1981, of robbery in the first degree, robbery in the second degree, assault in the second degree and criminal possession of a weapon in the second degree, which conviction was thereafter affirmed (see, People v McNair, 93 AD2d 1004). Prior to perfecting the appeal from his judgment of conviction, the petitioner brought the habeas corpus petition now at issue. That petition was properly dismissed without a hearing.

"[W]hile an appeal is pending, a writ of habeas corpus is available only where considerations of practicality and necessity so dictate” (People ex rel. Gist v LeFevre, 88 AD2d 731). Where the alleged errors may be directly reviewed on the pending appeal and there is no compelling reason to examine them in the habeas corpus proceeding, a judgment dismissing the petition should be affirmed (see, People ex rel. Greenwaldt v Infante, 87 AD2d 904, 905).

Nor is postjudgment collateral relief available to review issues which could have and should have been raised on an earlier appeal (see, People ex rel. Small v Scully, 92 AD2d 943). Mollen, P. J., Weinstein, Lawrence and Kunzeman, JJ., concur.