People ex rel. Graham v. McClellan — 182 A.D.2d 872

Majority

p. 872

The People of the State of New York ex rel. Richard Graham, Appellant, v Robert McClellan, as Superintendent of Southport Correctional Facility, Respondent.

Appeal from a judgment of the Supreme Court (Swartwood, J.), entered December 7, 1990 in Chemung County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this habeas corpus proceeding arguing that his confession should have been suppressed as the product of a warrantless arrest. Because a writ of habeas corpus is not generally available to raise issues which were or could have been raised on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Woodard v Berry, 143 AD2d 457 , 458, lv denied 73 NY2d 705 ; People ex rel. Rosado v Miles, 138 AD2d 808 ), Supreme Court properly denied petitioner’s application for a writ of habeas corpus. In addition, we see no reason to depart from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 AD2d 850 , lv denied

p. 873

75 NY2d 702 ; People ex rel. Avery v LeFevre, 105 AD2d 1015 ). In any event, even if petitioner’s claim was meritorious, he is not entitled to immediate release; therefore, habeas corpus is not an appropriate remedy (see, People ex rel. Richards v Reid, 117 AD2d 695 ; People ex rel. Williams v Scully, 107 AD2d 729 , 730).

Weiss, P. J., Crew III, Mahoney, Casey and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.

Cases cited

People ex rel. Woodard v. Berry 143 AD2d 457 N.Y. App. Div. 1988-09-15 at 458 p. 872
People ex rel. Rosado v. Miles 138 AD2d 808 N.Y. App. Div. 1988-03-10 p. 872
People ex rel. Grady v. LeFevre 152 AD2d 850 N.Y. App. Div. 1989-07-13 p. 872