People ex rel. Stephens v. Smith

64 A.D.2d 1008, 409 N.Y.S.2d 287, 1978 N.Y. App. Div. LEXIS 13005

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1978
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: On this appeal from a dismissal of his writ of habeas corpus without a hearing, relator asserts that the court should have considered the merits of his contention that he was deprived of his right to appear before the Grand Jury under CPL 190.50 (subd 5, par [a]). A writ of habeas corpus can be utilized to review neither claimed errors already passed on in an earlier appeal nor issues which could have been raised on appeal but were not (e.g., People ex rel. Knox v Smith, 60 AD2d 789). Inasmuch as the issue raised by relator could have been adequately reviewed on the appeal from his judgment of conviction (see Matter of Be Con tie v Jefferson County Ct., 40 ÁD2d 619, 620), the writ was properly dismissed. (Appeal from judgment of Wyoming County Court—habeas corpus.) Present—Moule, J. P., Cardamone, Dillon, Hancock, Jr., and Schnepp, JJ.