People ex. rel. Grant v. Scully

— Judgments, Supreme Court, New York County, entered, respectively, August 27,1987 (George F. Roberts, J.) and September 19,1988 (Alfred Kleiman, J.), denying petitions for writs of habeas corpus, unanimously affirmed, without costs. Convicted of murder in the second degree, petitioner brought two proceedings for writs of habeas corpus, in 1987 and 1988, alleging that the felony complaint was insufficient, that the indictment was defective because he was not given sufficient notice of the Grand Jury hearing or an opportunity to testify before it, that he was denied the right to counsel, that the Assistant District Attorney lied about not being present at his arrest and not reading him his Miranda warnings, that he was misidentified, and that he was denied his right to a hearing prior to arraignment. Upon petitioner’s appeals of the denial of both writs, this Court assigned counsel, who filed a brief seeking permission to withdraw on the ground that no nonfrivolous points could be raised (People v Saunders, 52 AD2d 833). Petitioner then filed a pro se supplemental brief claiming ineffective assistance of appellate counsel. All but the last of petitioner’s claims could have been 544 reviewed on direct appeal from the judgment of conviction, and thus are not subject to review by habeas corpus (People ex rel. Goss v Smith, 69 NY2d 727, affg 116 AD2d 968). And, a writ of habeas corpus is not an appropriate vehicle for raising a claim of ineffective assistance of appellate counsel (People v Bachert, 69 NY2d 593, 599). In addition, even if there were merit to any of petitioner’s claims, the only relief available would be a new trial, not an immediate release from custody (People ex rel. Douglas v Vincent, 50 NY2d 901). Concur— Sullivan, J. P., Milonas, Ross and Asch, JJ.