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eBook details

• Title: People State New York Ex Rel. Herbert Thomas
• Author : Supreme Court of New York
• Release Date : January 14, 1984
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

Appeal from a judgment of the Supreme Court at Special Term (Mercure, J.), entered August 15, 1983 in Clinton County, which denied petitioners application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. P Petitioners are each presently serving a sentence of 25 years to life in prison upon their respective convictions after a jury trial for murder in the second degree. In a combined petition for a writ of habeas corpus, petitioners allege that each was denied his right to appear and testify before the Grand Jury due, in part, to ineffective assistance of counsel. Additionally, petitioner Victor Marchands conviction was affirmed by the Appellate Division, Second Department (People v Marchand, 83 A.D.2d 995), and a subsequent application for leave to appeal to the Court of Appeals was denied (55 N.Y.2d 752). Petitioner Herbert Thomas has apparently yet to perfect a direct appeal from his conviction. The writ was denied by Special Term without a hearing, and the instant appeal ensued. P There should be an affirmance. The contentions of illegality raised by petitioners could have been reviewed directly, either by means of a direct appeal or pursuant to a CPL article 440 proceeding in the court of conviction. Habeas corpus, therefore, is an inappropriate remedy (People ex rel. Davis v Coombe, 97 A.D.2d 667; People ex rel. Sales v LeFevre, 93 A.D.2d 945, mot for lv to app den 60 N.Y.2d 558; People ex rel. Hall v LeFevre, 92 A.D.2d 956, affd 60 N.Y.2d 579; People ex rel. World v Jones, 88 A.D.2d 1096, mot for lv to app den 57 N.Y.2d 608). Although the record does not reveal which issues petitioner Marchand raised on his appeal, the fact remains that an opportunity to raise the present issues was available (see People ex rel. Schaurer v Fogg, 92 A.D.2d 647; People ex rel. Gaines v Jones, 79 A.D.2d 1065). A similar opportunity was available to petitioner Thomas, notwithstanding his failure to perfect a direct appeal (see People ex rel. Davis v Coombe, supra). Nor do the facts of this case indicate a violation of petitioners fundamental constitutional rights such as to warrant a departure from traditional orderly procedure (see People ex rel. Keitt v McMann, 18 N.Y.2d 257, cert den 376 US 972). P Judgment affirmed, without costs. Mahoney, P.J., Main, Weiss, Levine and Harvey, JJ., concur.

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