General
The People of the State of New York ex rel. Jerry Murphy, Respondent, v. Jerry Burrell, as Sheriff of Cattaraugus County, Appellant
161 A.D.2d 1116·New York Supreme Court, Appellate Division·1990·NY
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Opinion
The People of the State of New York ex rel. Jerry Murphy, Respondent, v Jerry Burrell, as Sheriff of Cattaraugus County, Appellant.
[MAJORITY]
Judgment unanimously reversed on the law and petition dismissed without prejudice. Memorandum: Although we agree with the conclusions reached by the trial court, reversal is nonetheless mandated because a writ of habeas corpus will not lie where the applicant is not detained (see, CPLR 7003 [a]; People ex rel. Barrett v New York State Bd. of Parole, 58 NY2d 729; People ex rel. Wilder v Markley, 26 NY2d 648). Accordingly, applicant’s writ of habeas corpus is dismissed without prejudice. (Appeal from judgment of Cattaraugus County Court, Kelly, J.—habeas corpus.) Present—Dillon, P. J., Doerr, Green, Lawton and Lowery, JJ.