People ex rel. Brown v. Keane

Cardona, P. J. Appeal from a judgment of the Supreme Court (LaBuda, J.), entered April 7, 2000 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner, having been found guilty of criminal sale of a controlled substance in the third degree, commenced this habeas corpus proceeding contending that he is unlawfully detained because the trial court impermissibly held that its subpoena power did not extend to a witness located in another state. Supreme Court dismissed petitioner’s application and we affirm. The record reveals that petitioner could have raised this issue on his direct appeal from the judgment of conviction (see, People ex rel. Rada v Goord, 274 AD2d 795; Matter of Medina v Senkowski, 242 AD2d 762). Moreover, even if petitioner were successful in his argument, he would at most be entitled to a new trial, not immediate release from detention (see, e.g., People v Prentice, 208 AD2d 1064, lv dismissed 84 NY2d 1037) and, thus, could not obtain the relief he seeks in this proceeding (see, People ex rel. Kaplan v Commissioner of Correction of City of N. Y., 60 NY2d 648). Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.