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People ex Rel. Marsh v. Miller

Appellate Division of the Supreme Court of New York, Third Department
Sep 14, 2000
275 A.D.2d 822 (N.Y. App. Div. 2000)

Opinion

September 14, 2000.

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered December 27, 1999 in Ulster County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Eric Marsh, Napanoch, appellant in person.

Eliot Spitzer, Attorney-General (Marlene O. Tuczinski of counsel), Albany, for respondent.

Before: Cardona, P.J., Crew III, Spain, Graffeo and Rose, JJ.


MEMORANDUM AND ORDER

Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that he is unlawfully detained because the indictment was jurisdictionally defective and County Court lacked geographic jurisdiction, properly referred to as venue. Supreme Court dismissed petitioner's application and we affirm. The record reveals that petitioner could have raised and/or did raise these issues either on direct appeal from the judgment of conviction or by way of a motion pursuant to CPL article 440 in the court of original jurisdiction (see,People ex rel. Caroselli v. Goord, 268 A.D.2d 827, lv denied 94 N.Y.2d 765;People ex rel. Moore v. Scully, 189 A.D.2d 845). Moreover, even if he was successful in his arguments, petitioner would be entitled to a new trial but not to immediate release from detention (see, People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 903). Accordingly, habeas corpus relief is unavailable to petitioner.

ORDERED that the judgment is affirmed, without costs.


Summaries of

People ex Rel. Marsh v. Miller

Appellate Division of the Supreme Court of New York, Third Department
Sep 14, 2000
275 A.D.2d 822 (N.Y. App. Div. 2000)
Case details for

People ex Rel. Marsh v. Miller

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. ERIC MARSH, Appellant, v…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Sep 14, 2000

Citations

275 A.D.2d 822 (N.Y. App. Div. 2000)
713 N.Y.S.2d 501

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