Civil Procedure · MBE-tested
The People of the State of New York ex rel. Nathan Baxter, Appellant, v. James Berbary, as Superintendent of Collins Correctional Facility, Respondent
294 A.D.2d 932741 N.Y.S.2d 777·New York Supreme Court, Appellate Division·2002·NY
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Opinion
The People of the State of New York ex rel. Nathan Baxter, Appellant, v James Berbary, as Superintendent of Collins Correctional Facility, Respondent.
[741 NYS2d 777]
[MAJORITY]
—Appeal from a judgment (denominated order) of Supreme Court, Erie County (O’Donnell, J.), entered February 27, 2001, 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 have been raised on direct appeal or by a motion pursuant to CPL article 440 (see People ex rel. Mancuso v Herbert, 256 AD2d 1158, 1159, lv denied 93 NY2d 809). Further, habeas corpus is not an available remedy because the issue raised by petitioner, even if meritorious, would entitle him to a new reconstruction hearing or a new trial, not release from custody (see People ex rel. Taylor v Commissioner of Correction, 100 AD2d 525). Present—Pigott, Jr., P.J., Green, Hurlbutt, Burns and Lawton, JJ.