People ex rel. Baxter v. Berbary

—Appeal from a judgment (denominated order) of Supreme Court, Erie County (O’Donnell, J.), entered February 27, 2001, which dismissed the petition seeking a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. The issue raised in the petition could have been raised on direct appeal or by a motion pursuant to CPL article 440 (see People ex rel. Mancuso v Herbert, 256 AD2d 1158, 1159, lv denied 93 NY2d 809). Further, habeas corpus is not an available remedy because the issue raised by petitioner, even if meritorious, would entitle him to a new reconstruction hearing or a new trial, not release from custody (see People ex rel. Taylor v Commissioner of Correction, 100 AD2d 525). Present—Pigott, Jr., P.J., Green, Hurlbutt, Burns and Lawton, JJ.