People ex rel. Nalo v. Sullivan — 120 A.D.2d 759

Majority

p. 759

The People of the State of New Yoek ex rel. Soeecho Nalo, Appellant, v James Sullivan, Respondent.

— In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Martin, J.), entered September 26, 1983, which dismissed the proceeding.

Judgment affirmed, without costs or disbursements.

p. 760

Habeas corpus relief is not appropriate in this instance since the petitioner would not be entitled to immediate release from custody even if his contentions had merit (see, People ex rel. Douglas v Vincent, 50 NY2d 901 ; People ex rel. Lane v Vincent, 32 NY2d 940 ).

In any event, the petitioner’s contentions are without merit. At the trial giving rise to the petitioner’s detention, the trial court had jurisdiction to submit unlawful imprisonment to the jury as a lesser included offense of kidnapping, which was the crime charged in the indictment against the petitioner, even though the court did not submit kidnapping to the jury for its consideration (see, People v Panuccio, 90 AD2d 507 ; People v Buthy, 85 AD2d 890 ; People v Mendez, 63 AD2d 69 ; People v Congilaro, 60 AD2d 442 ). Bracken, J. P., Brown, Weinstein and Spatt, JJ., concur.

Cases cited

People ex rel. Douglas v. Vincent 50 NY2d 901 N.Y. 1980-06-10 p. 760
People v. Mendez 63 AD2d 69 N.Y. App. Div. 1978-07-13 p. 760
People v. Congilaro 60 AD2d 442 N.Y. App. Div. 1977-12-16 p. 760