People ex rel. Shaffer v. Leonardo

178 A.D.2d 704, 576 N.Y.S.2d 828, 1991 N.Y. App. Div. LEXIS 16021

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1991
• Status: Published

Opinion

— Appeal from a judgment of the Supreme Court (Berke, J.), entered April 18, 1991 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

A writ of habeas corpus is not generally available to raise issues which were or could have been raised on direct appeal or by way of a CPL article 440 proceeding (see, People ex rel. Christianson v Berry, 165 AD2d 961, lv denied 77 NY2d 805). Given that this is the case here and insofar as the facts do not indicate any circumstances warranting departure from traditional, orderly procedure (see, People ex rel. Avery v LeFevre, 105 AD2d 1015), Supreme Court properly denied the application (see also, People ex rel. Shaffer v Kuhlmann, 173 AD2d 1034, lv denied 78 NY2d 856).

Mahoney, P. J., Casey, Levine, Mercure and Crew III, JJ., concur. Ordered that the judgment is affirmed, without costs.