People ex rel. Fisher v. Stinson

—Appeal from a judgment of the Supreme Court (Berke, J.), entered November 16, 1995 in Washington County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner commenced this habeas corpus proceeding following his conviction of the crime of robbery in the second degree. Supreme Court dismissed the petition on the ground that it technically was defective and that habeas corpus relief was inappropriate given that petitioner had an appeal pending from his underlying conviction. Having reviewed the record, we agree with Supreme Court that the petition is defective for failure to comply with many of the requirements of CPLR 7002 (see, People ex rel. Boyd v LeFevre, 92 AD2d 1042, Iv denied 59 NY2d 604). We further agree that because the issues raised in petitioner’s habeas corpus petition could well have been raised in his appeal from the conviction, habeas corpus relief is inappropriate (see, People ex rel. Murphy v Leonardo, 179 AD2d 848, Iv denied 79 NY2d 757). Therefore, Supreme Court properly dismissed the petition. Crew III, J. P., White, Casey, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.