Majority
p. 219People ex rel. Kenneth Maula, Appellant, v Lloyd Freckleton, as Warden, Respondent.
Motion to be released on bail granted only to extent of continuing interim relief granted by a Justice of this Court on April 9, 1991, on the same terms and conditions as stated therein, and on the further condition that petitioner perfect his appeal for the September 1991 Term. Concur—Carro, Rosenberger, Kupferman and Rubin, JJ.
dissents in a memorandum as follows: Quite apart from the dubious merit of the underlying claim, peti
Dissent
p. 220
tioner’s grievance is, in any event, beyond habeas corpus review. (People ex rel. Douglas v Vincent, 50 NY2d 901 , 903, affg 67 AD2d 587 .) "A writ of habeas corpus can neither be utilized to review claimed errors already passed on in an earlier appeal * * * nor issues which could have been raised on appeal but were not”. (People ex rel. Knox v Smith, 60 AD2d 789 , lv denied 43 NY2d 647 ; see, People ex rel. Sedlak v Foster, 299 NY 291 ; compare, CPL 440.10.) On successive appeals from the instant conviction, petitioner failed to raise the double jeopardy claim he now advances, limiting himself, in each instance, to a sentence issue.
Thus, the motion for petitioner’s release on bail, pending appeal of the dismissal of his writ, should, in all respects, be denied.
Cases cited
- People ex rel. Douglas v. Vincent 50 NY2d 901 at 903 p. 220
- People ex rel. Douglas v. Vincent 67 AD2d 587 p. 220
- People ex rel. Sedlak v. Foster 299 NY 291 p. 220