Majority
p. 939The People of the State of New York ex rel. Terry B. Minter, Appellant, v Thomas C. Eisenschmidt, as Superintendent of Five Points Correctional Facility, Respondent. [741 NYS2d 781]
—Appeal from a judgment (denominated order) of Supreme Court, Seneca County (Bender, J.), entered December 26, 2000, which dismissed the petition seeking a writ of habeas corpus.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. The issue raised in the petition could be raised on direct appeal or by a CPL article
p. 940
440 motion, and thus the remedy of habeas corpus is not available (see Matter of Roberts v County Court of Wyoming County, 39 AD2d 246 , 252-253, affd 34 NY2d 246 ; People ex rel. Mancuso v Herbert, 256 AD2d 1158 , 1159, lv denied 93 NY2d 809 ; People ex rel. Abdullah v Walker, 199 AD2d 1074 , lv denied 83 NY2d 752 ; People ex rel. Hannon v Ryan, 34 AD2d 393 , 396, lv denied 27 NY2d 487 ; cf. People ex rel. Keitt v McMann, 18 NY2d 257 , 262). Present—Pine, J.P., Hayes, Wisner, Scudder and Kehoe, JJ.
Cases cited
- Roberts v. County Court of Wyoming County 39 AD2d 246 at 252-253 p. 940
- Roberts v. County Court of Wyoming County 34 NY2d 246 p. 940
- People ex rel. Mancuso v. Herbert 256 AD2d 1158 at 1159 p. 940
- People ex rel. Hannon v. Ryan 34 AD2d 393 at 396 p. 940
- People ex rel. Keitt v. McMann 18 NY2d 257 at 262 p. 940