People ex rel. Milwood v. Kuhlmann

136 A.D.2d 784, 523 N.Y.S.2d 247, 1988 N.Y. App. Div. LEXIS 24

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1988
• Status: Published

Opinion

Harvey, J.

Appeal from a judgment of the Supreme Court (Hanofee, J.), entered April 8, 1987 in Sullivan County, which dismissed a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, after a hearing.

Petitioner was sentenced in July 1980 to concurrent prison terms of 20 years to life and 8 Vz to 25 years following his conviction of the crimes of murder in the second degree and robbery in the first degree. The judgment of conviction was affirmed by the Appellate Division, Second Department (People v Milhood, 108 AD2d 875). Petitioner subsequently initiated this habeas corpus proceeding claiming that he had been denied effective assistance of counsel during the course of his extradition from California and that his initial arrest was not supported by probable cause. Supreme Court ultimately dismissed the petition and this appeal ensued.

The facts purportedly supporting petitioner’s instant arguments were known before his appeal to the Appellate Division, Second Department, and could have been raised on that appeal, or the arguments could have been advanced in a motion pursuant to CPL article 440. Accordingly, habeas corpus is not an appropriate remedy (see, People ex rel. Davis v Coombe, 97 AD2d 667; People ex rel. Hall v LeFevre, 92 AD2d 956, affd 60 NY2d 579). The facts alleged by petitioner do not provide a basis for departing from traditional orderly procedure (see, People ex rel. Keitt v McMann, 18 NY2d 257).

Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.