Opinion
October 24, 1967
Appeal from a judgment of the Supreme Court which dismissed a writ of habeas corpus whereby relator sought to be released from the imprisonment to which he was sentenced upon conviction of a felony; relator contending that upon his trial evidence was produced against him in violation of the right to immunity expressly conferred upon him when, subsequent to his indictment, he testified before another Grand Jury concerning another transaction, as to which no indictment was found. (Penal Law. § 2447, subd. 2.) At the hearing, upon the return of the writ, which had been issued by another Justice, the Special Term Justice denied relator's request for counsel. Upon this appeal relator asks that the order be reversed and the writ sustained on the merits or, in the alternative, that the matter be remanded for rehearing, after assignment of counsel. It appears from the papers which relator submitted in support of his original application for the writ that his claim of a violation of his immunity pursuant to section 2447 was decided adversely to him by the trial court and was presented to the Appellate Division upon appeal from the judgment of conviction, which was thereupon affirmed ( People v. Visconti, 24 A.D.2d 841), and, further, that his application for a certificate granting permission to appeal to the Court of Appeals was on November 6, 1965 denied by a Judge of that court. The application was clearly devoid of merit and the writ was properly dismissed. This, then, was a "baseless [and] repetitious" proceeding and the hearing court was not required to accede to relator's request for the assignment of counsel. ( People ex rel. Williams v. La Vallee, 19 N.Y.2d 238, 240-241.) Indeed, and as we found in a similarly baseless case, "no hearing should have been held in the first place." ( People ex rel. Hardeman v. McMann, 26 A.D.2d 864.) Judgment affirmed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.