People ex rel. Ali v. Stinson

Appeal from a judgment of the Supreme Court (Berke, J.), entered August 10, 1995 in Washington County, which denied petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is incarcerated at Great Meadow Correctional Facility in Washington County having been convicted after a jury trial of the crimes of conspiracy in the second degree, criminal possession of a controlled substance in the first degree and criminal sale of a controlled substance in the first degree. He *764commenced this proceeding for a writ of habeas corpus alleging that his conviction should be overturned because the Trial Judge improperly absented herself from the courtroom during portions of the trial. Supreme Court denied the petition on the basis that habeas corpus was not the appropriate remedy. Petitioner appeals. Based upon our review of the record, we concur with Supreme Court that petitioner should have raised his claim via a motion pursuant to CPL article 440 or by direct appeal (see, People ex rel. Martinez v Senkowski, 227 AD2d 751; People ex rel. Sneed v Lacy, 217 AD2d 731, lv denied 86 NY2d 708) and that, if successful, he is at most entitled to a new trial and not release from custody (see, People ex rel. Frazier v Fogg, 122 AD2d 377, 378). Therefore, we find that habeas corpus relief is not appropriate and that Supreme Court properly denied the petition.

Mikoll, J. P., Crew III, White, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.