People ex rel. Bonez v West

Decided and Entered: October 27, 2005
97430
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK ex rel. WILLIAM F.
BONEZ,
Appellant,
v
CALVIN WEST, as Superintendent
of Elmira Correctional
Facility,
Respondent. .....

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Decided and Entered: October 27, 2005 97430 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM F. BONEZ, Appellant, v CALVIN WEST, as Superintendent of Elmira Correctional Facility, Respondent. ________________________________ Calendar Date: September 28, 2005 Before: Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ. __________ William F. Bonez, Dannemora, appellant pro se. Eliot Spitzer, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent. __________ Appeal from a judgment of the Supreme Court (Rumsey, J.), entered September 23, 2004 in Chemung County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner was convicted in 1981 of murder in the second degree and criminal possession of a weapon in the second degree. Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging defects in the pretrial hearing. Supreme Court denied the petition, as well as petitioner’s subsequent motion for reargument. Petitioner now appeals. We affirm. Because petitioner could have raised this issue on direct appeal or in the context of a CPL article 440 motion, habeas corpus is inappropriate (see People ex rel. LeBron v Herbert, 287 AD2d 917 [2001], lv denied 97 NY2d 609 [2002]). Moreover, even if successful, petitioner would not be entitled to immediate release, making a writ of habeas corpus unavailable (see People ex rel. Woodard v Senkowski, 305 AD2d 879 [2003], lv denied 100 NY2d 511 [2003]). Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. ORDERED that the judgment is affirmed, without costs.

People ex rel. Bonez v West

Decided and Entered: October 27, 2005 97430 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM F. BONEZ, Appellant, v CALVIN WEST, as Superintendent of Elmira Correctional Facility, Respondent. .....

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Decided and Entered: October 27, 2005
97430
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK ex rel. WILLIAM F.
BONEZ,
Appellant,
v
CALVIN WEST, as Superintendent
of Elmira Correctional
Facility,
Respondent. .....