People State New York Ex Rel. Harry Davis v. Philip Coombe - Supreme Court of New York

People State New York Ex Rel. Harry Davis v. Philip Coombe

By Supreme Court of New York

  • Release Date: 1983-10-27
  • Genre: Law
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People State New York Ex Rel. Harry Davis v. Philip Coombe Supreme Court of New York Book Review Score: ★★★★★ 5/5 stars

Appeal from a judgment of the Supreme Court at Special Term (Traficanti, J.), entered April 22, 1983 in Ulster County, which dismissed a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, after a hearing. Petitioner is presently serving a sentence of two to four years in prison upon his conviction after a jury trial of criminally negligent homicide. In his petition for a writ of habeas corpus, petitioner alleged that he was denied his right to appear and testify before the Grand Jury; that the evidence before the Grand Jury was legally insufficient to sustain the indictment; and that the trial court erred in charging criminally negligent homicide as a lesser included offense of murder in the second degree. He further stated that a notice of appeal dated July 5, 1982 had been filed, but that no resolution of the appeal had yet been made. The writ was dismissed by Special Term after a hearing and the instant appeal by petitioner ensued. There should be an affirmance. Since petitioners contentions of illegality could have been reviewed directly by way of direct appeal or pursuant to a CPL article 440 proceeding in the court of conviction, habeas corpus relief is inappropriate (People ex rel. Sales v LeFevre, 93 A.D.2d 945; 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; People ex rel. Frazier v Coombe, 87 A.D.2d 904; People ex rel. Jenkins v Smith, 58 A.D.2d 1033). Particularly is this so where a notice of appeal from the original conviction has, as here, been filed (People ex rel. Greenwaldt v Infante, 87 A.D.2d 904). Although the record does not establish whether petitioners appeal to the Appellate Division, Second Department, has been perfected, the fact remains that an opportunity to raise the present issues was available on appeal (People ex rel. Schaurer v Fogg, 92 A.D.2d 647). Further, the facts of this case do not [97 A.D.2d 667 Page 668]

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