People ex rel. Smallwood-El v. Scully

114 A.D.2d 919, 495 N.Y.S.2d 662, 1985 N.Y. App. Div. LEXIS 53964

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1985
• Status: Published

Opinion

—In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Dutchess County (King, J.), entered May 30,1984, which dismissed the proceeding.

Judgment affirmed, without costs or disbursements.

Petitioner was convicted of burglary in the second degree, criminal possession of stolen property in the second degree, and possession of burglary tools and sentenced, inter alia, to imprisonment for a term of 5 to 10 years. At the time petitioner commenced this proceeding he had an appeal from the judgment of conviction pending but not perfected.

Petitioner attempts in the instant proceeding to challenge his conviction on the ground that the use of a religiously offensive name at his trial violated his 1st Amendment rights and rendered the judgment void.

Habeas corpus is not the proper remedy for attacking the judgment of conviction (People ex rel. Sales v LeFevre, 93 AD2d 945). Thompson, J. P., Bracken, O’Connor and Weinstein, JJ., concur.