People ex rel. Rios v. Irvin

256 A.D.2d 1169, 683 N.Y.S.2d 444, 1998 N.Y. App. Div. LEXIS 14304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1998
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied the petition for a writ of habeas corpus. Relator is not entitled to habeas corpus relief based upon the alleged ineffective assistance of appellate counsel “because the only remedy to which he would be entitled would be * * * a new appeal, and not a direction that he be immediately released from custody” (People ex rel. Kaplan v Commissioner of Correction of City of N. Y., 60 NY2d 648, 649). The denial of relator’s application for a writ of error coram nobis, also based upon the alleged ineffectiveness of appellate counsel (People v Rios, 228 AD2d 526), does not provide a basis for habeas corpus relief. The absence of a procedure permitting review of the denial of the coram nobis application does not deprive relator of due process of law or render his detention illegal (see, People v Gersewitz, 294 NY 163, 168, cert dismissed 326 US 687; see also, People ex rel. Sedlak v Foster, 299 NY 291, 294). (Appeal from Judgment of Supreme Court, Erie County, Flaherty, J.— Habeas Corpus.) Present — Green, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ.