People ex rel. Garcia v. Warden, Sing Sing Prison

• Decision Date: 05 June 1967
• Citation: 28 A.D.2d 682,280 N.Y.S.2d 754
• Parties: The PEOPLE, etc., ex rel. Maximo GARCIA, Appellant, v. WARDEN, SING SING PRISON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 754

280 N.Y.S.2d 754

28 A.D.2d 682

The PEOPLE, etc., ex rel. Maximo GARCIA, Appellant, v. WARDEN, SING SING PRISON, Respondent.

Supreme Court, Appellate Division, Second Department.

June 5, 1967.

Before CHRIST, Acting P.J., and RABIN, BENJAMIN, MUNDER and NOLAN, JJ.

MEMORANDUM BY THE COURT.

Judgment of the Supreme Court, Westchester County, dated May 24, 1966, affirmed, without costs.

The pendency of relator's appeal from the judgment of conviction rendered dismissal of the writ proper (People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 899, 220 N.E.2d 653, 654; People v. Howard, 12 N.Y.2d 65, 66, 236 N.Y.S.2d 39, 41, 187 N.E.2d 113, 114). The alleged illegality of relator's arrest, even if proved, would not have entitled him to post-conviction relief (People v. Grant, 16 N.Y.2d 722, 723, 262 N.Y.S.2d 106, 209 N.E.2d 723, 724). Relator made no request for assignment of counsel at the hearing (cf. People v. Monahan, 17 N.Y.2d 310, 270 N.Y.S.2d 613, 217 N.E.2d 664) and, unlike People ex rel. Williams v. La Vallee, 19 N.Y.2d 238, 240, 279 N.Y.S.2d 1, 2, 225 N.E.2d 735, there was nothing in the petition or presented at the hearing which should have prompted the court to assign counsel as a matter of discretion.