Opinion
Decided and Entered: June 28, 2001.
Appeal from a judgment of the Supreme Court (La Buda, J.), entered April 7, 2000 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
Ronald Brown, New York City, appellant in person.
Richard A. Brown, District Attorney (Emil Bricker of counsel), New York City, for respondent.
Before: Cardona, P.J., Spain, Carpinello, Mugglin and Rose, JJ.
MEMORANDUM AND ORDER
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 A.D.2d 795; Matter of Medina v. Senkowski, 242 A.D.2d 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 A.D.2d 1064, lv dismissed 84 N.Y.2d 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 N.Y.2d 648).
Spain, Carpinello, Mugglin and Rose, JJ., concur.
ORDERED that the judgment is affirmed, without costs.