People ex rel. Sanchez v. Hoke

Levine, J. Appeal from a judgment of the Supreme Court (Traficanti, Jr., J.), entered October 20, 1986 in Ulster County, which dismissed a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner is presently incarcerated under a judgment of conviction and sentence as a predicate felony offender. The sole ground for habeas corpus relief alleged in the petition is that petitioner at the time of sentencing was not advised of his right to contest the constitutionality of or otherwise controvert his prior felony conviction. Facts alleged in the petition or set forth in its exhibits establish (1) that a direct appeal from the present judgment of conviction is pending, and (2) that petitioner raised the identical issues in a prior, unsuccessful application for postconviction relief under CPL article 440, leave to appeal from the dismissal thereof having been denied by a Justice of the Appellate Division, First Department. Petitioner has advanced no basis for departure here from the general rule that habeas corpus is inappropri [862] ate when petitioner’s contention of illegality is reviewable on a pending appeal (People ex rel. Scott v Superintendent, Great Meadow Correctional Facility, 112 AD2d 502, appeal dismissed 67 NY2d 646). A further basis for sustaining dismissal of the petition without a hearing is that it raises no new matter that was not raised and resolved against petitioner in his prior CPL article 440 application (see, People ex rel. Maher v Fay, 27 AD2d 853). Nor did Supreme Court abuse its discretion in denying petitioner’s request for assigned counsel, since the writ was both repetitious and precluded under well-established principles (see, People ex rel. Williams v La Vallee, 19 NY2d 238, 240). Judgment affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.