People ex rel. Murphy v. Burrell

161 A.D.2d 1116, 558 N.Y.S.2d 860, 1990 N.Y. App. Div. LEXIS 9087

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1990
• Status: Published

Opinion

Judgment unanimously reversed on the law and petition dismissed without prejudice. Memorandum: Although we agree with the conclusions reached by the trial court, reversal is nonetheless mandated because a writ of habeas corpus will not lie where the applicant is not detained (see, CPLR 7003 [a]; People ex rel. Barrett v New York State Bd. of Parole, 58 NY2d 729; People ex rel. Wilder v Markley, 26 NY2d 648). Accordingly, applicant’s writ of habeas corpus is dismissed without prejudice. (Appeal from judgment of Cattaraugus County Court, Kelly, J.—habeas corpus.) Present—Dillon, P. J., Doerr, Green, Lawton and Lowery, JJ.