Opinion
February 28, 1995
Appeal from the Supreme Court, New York County (George Roberts, J.).
Once a trial has commenced, a petition for a writ of habeas corpus brought on the ground of denial of the right to a speedy trial should generally be denied (People ex rel. McDonald v Warden, 34 N.Y.2d 554), since the speedy trial claim may be raised on the direct appeal (see also, People ex rel. Harrison v Greco, 38 N.Y.2d 1025). Thus, insofar as petitioner's application was based on this ground, we find that the denial should be affirmed. Contrary to petitioner's contention, affirmance on this ground is warranted regardless of whether the petition was originally brought and decided prior to commencement of trial (see, People ex rel. McDonald v. Warden, 34 N.Y.2d 554, supra, affg 43 A.D.2d 857). Since petitioner has already been tried and found guilty of conspiracy in the second degree and attempted criminal possession of a controlled substance in the first degree, insofar as his application was based on an alleged denial of reasonable pretrial bail or the alleged conditions of his pretrial incarceration, it is now moot (see, People ex rel. Chakwin v. Warden, 63 N.Y.2d 120, 125; People ex rel. Doggett v Levy, 201 A.D.2d 261, appeal dismissed 83 N.Y.2d 905).
Motion for reargument granted and, upon reargument, the unpublished decision and order of this Court entered on November 10, 1994 (Appeal No. 53059) is recalled and vacated, and a new decision and order substituted therefor.
Concur — Ellerin, J.P., Rubin, Ross and Nardelli, JJ.