People ex rel. Spencer v. Miller

277 A.D.2d 551, 716 N.Y.S.2d 621, 2000 N.Y. App. Div. LEXIS 11162

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2000
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered February 10, 2000 in Ulster County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, serving a prison term of 12 years for his conviction of the crime of burglary in the second degree, commenced this proceeding for a writ of habeas corpus contending that he was denied effective assistance of counsel at the Grand Jury proceedings during which he waived his immunity and testified. Supreme Court dismissed the petition and we affirm. Inasmuch as petitioner has raised this issue in his pending direct appeal or could have raised it in a CPL article 440 motion, habeas corpus is an inappropriate remedy (see, People ex rel. Hall v Bennett, 267 AD2d 644, lv denied 94 NY2d 762; People ex rel. Charles v DeAngelo, 263 AD2d 796, 797; People ex rel. Gasper v Sullivan, 164 AD2d 926, lv denied 76 NY2d 712). Furthermore, we find no circumstances warranting a departure from traditional orderly procedure notwithstanding petitioner’s contention to the contrary (see, People ex rel. Hall v Bennett, supra).

Mercure, J. P., Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.