People ex rel. Sommer v. Mann

235 A.D.2d 562, 653 N.Y.S.2d 861, 1997 N.Y. App. Div. LEXIS 660

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1997
• Status: Published

Opinion

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Orange County (DiBlasi, J.), dated May 31, 1995, which denied the petition for the writ. The appeal brings up for review so much of an order of the same court, dated July 26, 1995, as, upon reargument, adhered to the prior determination (see, CPLR 5517 [b]).

Ordered that the appeal from the judgment dated May 31, 1995, is dismissed, without costs or disbursements, as that order was superseded by the order dated July 26, 1995, made upon reargument; and it is further,

Ordered that the order dated July 26, 1995, is affirmed insofar as reviewed, without costs or disbursements.

A writ of habeas corpus may not be used to review questions that could have been raised by direct appeal or by collateral attack in the court of conviction (see, People ex rel. Benbow v Scully, 189 AD2d 844; People ex rel. Whitehead v Jones, 184 AD2d 801; People ex rel. Hampton v Scully, 166 AD2d 734; People ex rel. Gasper v Sullivan, 164 AD2d 926). We agree with the Supreme Court that the petition at bar constitutes an improper attempt to obtain review of issues the petitioner could have, and unjustifiably failed to seek, by an appeal to the Appellate Term or by a motion for postjudgment relief to the Justice Court of the Town of Newburgh.

We have reviewed the petitioner’s remaining contentions and find them to be without merit. Miller, J. P., Joy, Altman and Goldstein, JJ., concur.