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People v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 19, 1997
244 A.D.2d 944 (N.Y. App. Div. 1997)

Opinion

November 19, 1997

(Appeal from Judgment of Supreme Court, Oneida County, Shaheen, J. — Habeas Corpus.)

Present — Pine, J. P., Lawton, Hayes, Wisner and Fallon, JJ.


Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition for a writ of habeas corpus. Relator is not entitled to habeas corpus relief based upon his contentions that he was deprived of his right to appeal and his right to effective assistance of appellate counsel, and that a newly discovered witness might have exonerated him upon a retrial. Relator's appeal has in fact been perfected and decided ( People v. Rivera, 234 A.D.2d 148, lv denied 89 N.Y.2d 946; cf., People ex rel. Lee v. Smith, 58 A.D.2d 987), and "the only remedy to which he would be entitled would be a new trial or new appeal, and not a direction that he be immediately released from custody" ( People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 649; see, People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 903). The contention of relator that he was deprived of effective assistance of appellate counsel may properly be raised by a motion for a writ of error coram nobis ( see, People v. Bachert, 69 N.Y.2d 593, 595-596).


Summaries of

People v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 19, 1997
244 A.D.2d 944 (N.Y. App. Div. 1997)
Case details for

People v. Smith

Case Details

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

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

Date published: Nov 19, 1997

Citations

244 A.D.2d 944 (N.Y. App. Div. 1997)
665 N.Y.S.2d 184

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