People ex rel. Stewart v. People

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Kutner, J.), dated December 30, 1985, which dismissed the petition. [1069] Ordered that the judgment is affirmed, without costs or disbursements. The petition was properly dismissed as the petitioner’s contentions regarding his alleged erroneous sentencing to consecutive terms of incarceration and the trial court’s failure to submit a lesser included offense to the jury are “claims which were or could have been reviewed on direct appeal from [the] judgment of conviction [and] are not subject to review by habeas corpus” (Matter of Williams v Scully, 135 AD2d 721; see, People ex rel. Vaughn v Sullivan, 135 AD2d 765; People ex rel. Nelson v Scully, 119 AD2d 709, lv denied 69 NY2d 602; People ex rel. Sales v LeFevre, 93 AD2d 945, lv denied 60 NY2d 558). Moreover, because neither of these claims, if meritorious, would entitle the petitioner to immediate release from custody, habeas corpus relief is inappropriate (see, People ex rel. Kaplan v Commissioner of Correction of City of N. Y., 60 NY2d 648; People ex rel. Douglas v Vincent, 50 NY2d 901; People ex rel. Robinson v Scully, 122 AD2d 290). In any event, we find the aforementioned contentions to be without merit. Finally, we do not consider the petitioner’s numerous remaining claims, as they were not raised in the Supreme Court, Suffolk County, and are advanced for the first time on the instant appeal. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur.