Opinion
September 25, 1970
Appeal from the Wyoming County Court.
Present — Del Vecchio, J.P., Marsh, Moule, Bastow and Henry, JJ.
Judgment unanimously affirmed. Memorandum: Relator was convicted of a felony following trial in Kings County Supreme Court in April, 1965 and is presently serving a sentence imposed thereon. The judgment was subsequently affirmed ( 27 A.D.2d 801). His present contention is that a pretrial identification constituted a denial of due process. We have held that such an error, affecting as it does the fairness of the trial and the integrity of the fact-finding process, entitles a defendant to a determination as to whether the pretrial identification procedure tainted the in-court identification ( People v. Schnebley, 33 A.D.2d 882). Without passing upon the availability of habeas corpus to grant relief upon the facts here present, we conclude that orderly procedure dictates that relief should be sought in the court where defendant was convicted. (Cf. People ex rel. Thompson v. Mancusi, 33 A.D.2d 643.) There perchance the issue may be decided upon the trial record. (Cf. People v. Ambrosoli, 33 A.D.2d 881.) If not, a hearing may be held where all the records and presumably the witnesses will be. We affirm without prejudice to the right of appellant to institute such a proceeding.