People ex rel. Rivera v. Smith

244 A.D.2d 944, 665 N.Y.S.2d 184, 1997 N.Y. App. Div. LEXIS 12319

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition for a writ of habeas corpus. Relator is not entitled to habeas corpus relief based upon his contentions that he was deprived of his right to appeal and his right to effective assistance of appellate counsel, and that a newly discovered witness might have exonerated him upon a retrial. Relator’s appeal has in fact been perfected and decided (People v Rivera, 234 AD2d 148, lv denied 89 NY2d 946; cf., People ex rel. Lee v Smith, 58 AD2d 987), and “the only remedy to which he would be entitled would be a new trial or 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; see, People ex rel. Douglas v Vincent, 50 NY2d 901, 903). The contention of relator that he was deprived of effective assistance of appellate counsel may properly be raised by a motion for a writ of error coram nobis (see, People v Bachert, 69 NY2d 593, 595-596). (Appeal from Judgment of Supreme Court, Oneida County, Shaheen, J.—Habeas Corpus.) Present—Pine, J. P., Lawton, Hayes, Wisner and Fallon, JJ.