People ex rel. Noto v. Police Department

283 A.D. 872, 129 N.Y.S.2d 257, 1954 N.Y. App. Div. LEXIS 5617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 1954
• Status: Published

Opinion

Writ dismissed, without prejudice to a motion by relators in the County Court, Kings County, to vacate the order pursuant to which, by their consent, they are being held in the custody of the police department, and without prejudice to the institution of any proceedings which may be necessary thereafter to raise the question of undue or prolonged detention. By order of the County Court, Kings County, dated July 1, 1952, relators were held as material witnesses, in bail of $50,000 each, under the provisions of section 618-b of the Code of Criminal Procedure, and at their request were “ continued in the custody of the New York City Police Department until further order in lieu of the bail.” Relators now seek their release from such custody by this habeas corpus proceeding, claiming in substance that they have been detained for an unreasonable length of time. In our opinion, they have failed to show that they have been confined against their will for an excessive or undue period. The order under which they are being held in protective custody was made at their request, and so far as appears from the record, they acquiesced in such detention and did not object thereto until the commencement of this proceeding or shortly prior thereto. Under the circumstances presented, we are unable to say that relators’ confinement has been illegal as a matter of law, so as to warrant their release on a writ of habeas corpus. If a motion to vacate the order under which they are being held shall be made and denied, relators will then be in a position to claim that they have been held unreasonably, in violation of their rights under section 5 of article I of the Constitution of the State of New York. Present — • Nolan, P. J., Adel, Wenzel, MaeCrate and Schmidt, JJ.