People ex rel. Jones v. Abrams

—In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Queens County (Leahy, J.), dated September 23, 1980, which denied the petition. Judgment affirmed, without costs or disbursements. The petition challenged the prosecutor’s waiver of an opening statement in petitioner’s nonjury trial and the constitutionality of CPL 320.20 (3) (a) insofar as that statute permits such a waiver. These challenges had been made on the direct appeal from petitioner’s conviction, and were considered and rejected by this court (People v Jones, 74 AD2d 613, lv denied 49 NY2d 894, 1004, cert denied 447 US 927; see, People v Rivara, 33 AD2d 567). Since habeas corpus does not lie to permit review of claimed errors already considered on direct appeal, the petition was properly denied (e.g., People ex rel. Williams v Scully, 107 AD2d 729; People ex rel. Small v Scully, 92 AD2d 943, lv denied 59 NY2d 605). Moreover, habeas corpus is inappropriate in this case since, even if meritorious, petitioner’s claims would at best result in a new trial, not release from custody (e.g., People ex rel. Kaplan v Commissioner of Correction of City of N. Y., 93 AD2d 768, affd 60 NY2d 648; People ex rel. Douglas v Vincent, 50 NY2d 901). We have examined petitioner’s remaining argument and find it to be without merit. Mangano, J. P., Thompson, Brown and Eiber, JJ., concur.