Appellate Division of the Supreme Court of New York, 2013

People ex rel. Allen v. Maribel

People ex rel. Allen v. Maribel
Appellate Division of the Supreme Court of New York · Decided June 12, 2013
107 A.D.3d 831; 966 N.Y.S.2d 685
People ex rel. Allen v. Maribel

Opinion of the Court

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Richmond County (Rienzi, J.), dated December 8, 2011, which, without a hearing, denied the petition and, in effect, dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

During the course of a pending criminal action against the petitioner on the charge of murder in the second degree, the petitioner commenced this proceeding pro se, seeking a writ of habeas corpus on the ground that preindictment delay in the commencement of the prosecution violated his constitutional *832right to due process (see generally People v Singer, 44 NY2d 241 [1978]). Generally, “[h]abeas corpus does not lie to determine whether the right to a speedy trial has been denied in a pending criminal action” (People ex rel. Harrison v Greco, 38 NY2d 1025, 1025 [1976]; see People ex rel. McDonald v Warden, N.Y. City House of Detention for Men, 34 NY2d 554, 555 [1974]). Rather, the issue could be raised on the petitioner’s direct appeal from any judgment of conviction rendered against him (see People ex rel. Hunter v Buffardi, 15 AD3d 736 [2005]; People ex rel. Braxton v Warden, 254 AD2d 381 [1998]). Contrary to the petitioner’s contention, the circumstances of this case did not present a situation where “[departure from traditional orderly proceedings, such as appeal, should be permitted ... by reason of practicality and necessity” (People ex rel. Keitt v McMann, 18 NY2d 257, 262 [1966]; see People ex rel. Chakwin v Warden, N.Y. City Correctional Facility, Rikers Is., 63 NY2d 120, 125 [1984]; People ex rel. Latta v Morgenthau, 73 AD3d 593 [2010]). Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding. Angiolillo, J.P., Hall, Roman and Hinds-Radix, JJ., concur.

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