People ex rel. Graham v. McClellan

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 *87375 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.