People ex rel. Gloss v. Costello

Appeal from a judgment (denominated order) of Supreme Court, Oneida County (Parker, J.), entered September 4, 2001, which dismissed the petition for a writ of habeas corpus. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition for a writ of habeas corpus because the issues raised therein either were raised or could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 (see People ex rel. Mammarello v Donnelly, 286 AD2d 937 [2001]; People ex rel. Woods v Walker, 283 AD2d 991, 991-992 [2001], appeal dismissed and lv denied 96 NY2d 928 [2001]). Moreover, the court properly dismissed the petition because habeas corpus relief does not lie where petitioner would not be [1161] entitled to immediate release even if his contentions had merit (see People ex rel. Beam v Hodges, 286 AD2d 936, 937 [2001]; Mammarello, 286 AD2d at 937; People ex rel. Santoro v Hollins, 273 AD2d 829 [2000]). Because “the petition ‘lacked any justiciable basis upon which a writ of habeas corpus could be sustained,’ ” the court did not abuse its discretion in denying petitioner’s application for assigned counsel (People ex rel. Brown v Murray, 284 AD2d 987, 988 [2001], quoting People ex rel. Washington v La Vallee, 34 AD2d 603, 603 [1970], lv denied 27 NY2d 481 [1970]). Present — Pigott, Jr., P.J., Green, Gorski, Lawton and Hayes, JJ.