People ex rel. Murphy v. Kuhlmann

207 A.D.2d 937, 616 N.Y.S.2d 680, 1994 N.Y. App. Div. LEXIS 8978

Opinion

—Appeal from a judgment of the Supreme Court (Kane, J.), entered August 19, 1993 in Sullivan County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Habeas corpus is not an appropriate remedy where the issue presented could have been raised on direct appeal or in a motion pursuant to CPL article 440. Here, petitioner’s contention concerning his indictment could have been raised in such a manner, and in fact was the subject of an unsuccessful motion pursuant to CPL article 440. Further, the facts of this case do not merit a departure from traditional orderly procedure. We therefore find no error in Supreme Court’s dismissal of petitioner’s application.

Cardona, P. J., Mikoll, Mercure, White and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.