People ex rel. Franza v. Stinson

Appeal from a judgment of the Supreme Court (Berke, J.), entered September 18, 1996 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.

Petitioner, an inmate at Great Meadow Correctional Facility in Washington County, was serving consecutive prison terms following his conviction of the crimes of attempted murder in the second degree (three counts) and criminal possession of a weapon in the first degree. Petitioner commenced this habeas corpus proceeding on the ground that his constitutional rights were violated when County Court reopened and conducted a pretrial hearing without petitioner being present. Supreme Court denied petitioner’s habeas corpus application. We affirm. Habeas corpus relief is inappropriate where, as here, the issue raised by petitioner could have been advanced on petitioner’s direct appeal or in the context of a CPLR article 440 motion (see, People ex rel. Hannon v Stinson, 232 AD2d 695; People ex rel. House v Jones, 102 AD2d 908). The fact that the length of petitioner’s supplemental brief was limited did not preclude petitioner from raising such issue on his direct appeal. In any event, the issue raised by petitioner, even if meritorious, would not warrant his immediate release (see generally, People v Dokes, 79 NY2d 656).

Cardona, P. J., Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.