People ex rel. Morgan v. Behrle

58 A.D.3d 909, 872 N.Y.S.2d 564

Opinion

Appeal from a judgment of the Supreme Court (Fulver Jr., J.), entered December 10, 2007 in Greene County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CFLR article 70, without a hearing.

Fetitioner commenced this CFLR article 70 proceeding seeking a writ of habeas corpus contending that the warrant used to secure a blood sample from him lacked probable cause. Inasmuch as petitioner could, and apparently did, advance this claim on his direct appeal from the judgment of conviction (People v Morgan, 48 AD3d 703 [2008], lv denied 10 NY3d 962 [2008]), habeas corpus relief does not lie (see People ex rel. Cropper v Taylor, 48 AD3d 852, 853 [2008], lv denied 10 NY3d 710 [2008]; People ex rel. Encarnacion v McGinnis, 2 AD3d 933 [2003], lv denied 1 NY3d 510 [2004]). Moreover, even assuming that petitioner’s argument had merit, habeas corpus relief nonetheless would be inappropriate as petitioner would not be entitled to immediate release from prison (see People ex rel. King v Bennett, 45 AD3d 1015, 1016 [2007], lv denied 10 NY3d 703 [2008]). Accordingly, Supreme Court’s judgment is affirmed.

Cardona, EJ., Peters, Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.