People ex rel. Bressette v. Superintendent of Great Meadow Correctional Facility

• Decision Date: 22 August 1991
• Citation: 175 A.D.2d 961,573 N.Y.S.2d 542
• Parties: The PEOPLE of the State of New York ex rel. Charles BRESSETTE, Appellant, v. SUPERINTENDENT OF GREAT MEADOW CORRECTIONAL FACILITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 542

573 N.Y.S.2d 542

175 A.D.2d 961

The PEOPLE of the State of New York ex rel. Charles

BRESSETTE, Appellant, v. SUPERINTENDENT OF GREAT MEADOW CORRECTIONAL FACILITY, Respondent.

Supreme Court, Appellate Division,

Third Department.

Aug. 22, 1991.

Charles Bressette, in pro. per.

Robert Abrams, Atty. Gen. (Lew A. Millenbach, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and WEISS, YESAWICH, CREW and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court (Harris, J.), entered October 3, 1990 in Albany County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Initially we note that petitioner has been released on parole, thus rendering moot this habeas corpus proceeding (see, People ex rel. Doyle v. Fischer, 159 A.D.2d 208, 551 N.Y.S.2d 830; People ex rel. Kitchen v. Sullivan, 121 A.D.2d 415, 502 N.Y.S.2d 531). In any event, petitioner's allegation that his conviction was in contravention of his 5th Amendment right against self-incrimination was or could have been raised on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Rosado v. Miles, 138 A.D.2d 808, 526 N.Y.S.2d 43), and we see no reason to depart from traditional orderly procedure (see, People ex rel. Grady v. Le Fevre, 152 A.D.2d 850, 544 N.Y.S.2d 61, lv. denied 75 N.Y.2d 702, 552 N.Y.S.2d 108, 551 N.E.2d 601). Finally, as Supreme Court noted, habeas corpus may not be used to collaterally attack a judgment of conviction on constitutional grounds (see, People ex rel. Sales v. Le Fevre, 93 A.D.2d 945, 946, 463 N.Y.S.2d 58, lv. denied 60 N.Y.2d 558, 469 N.Y.S.2d 1026, 457 N.E.2d 809).

ORDERED that the appeal is dismissed, as moot, without costs.