People ex rel. Rodriguez v. Harris

• Decision Date: 09 November 1981
• Parties: The PEOPLE, etc., ex rel. Marcelo RODRIGUEZ, Appellant, v. David R. HARRIS, Superintendent of Green Haven Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 784

443 N.Y.S.2d 784

84 A.D.2d 769

The PEOPLE, etc., ex rel. Marcelo RODRIGUEZ, Appellant, v. David R. HARRIS, Superintendent of Green Haven Correctional Facility, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 9, 1981.

Robert B. Dietz, Poughkeepsie, for appellant.

Robert Abrams, Atty. Gen., New York City (Burton Herman and Gerald J. Ryan, Asst. Attys. Gen., New York City, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, TITONE and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Dutchess County, dated September 19, 1980, which dismissed the writ.

Judgment affirmed, without costs or disbursements.

Petitioner was convicted on August 5, 1976 in the Supreme Court, Bronx County, of murder in the second degree and robbery in the first degree. This conviction was unanimously affirmed by the Appellate Division, First Department (People v. Rodriguez, 67 A.D.2d 837, 412 N.Y.S.2d 532). On March 26, 1979, leave to appeal to the Court of Appeals was denied by an associate judge of that court (People v. Rodriguez, 46 N.Y.2d 1084, 416 N.Y.S.2d 1039, 390 N.E.2d 314).

On July 21, 1980 a writ of habeas corpus was issued by the Supreme Court, Dutchess County, upon petitioner's claim that he was illegally detained because his 1976 conviction resulted from the use of pretrial statements obtained in violation of his constitutional right to counsel. He based this claim on the holding in People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 which prohibits, in the absence of counsel, police interrogation of a defendant on criminal matters related or unrelated to pending charges for which the defendant is already represented by counsel. That is, petitioner sought a retroactive application of Rogers to his own case, which had completed the appellate process prior to that decision.

Special Term dismissed the writ on the ground that a habeas corpus proceeding was inappropriate since petitioner sought merely to challenge the legality of the underlying evidence which led to his conviction.

Habeas corpus is an appropriate remedy. Petitioner claims a violation of a fundamental constitutional right, which was not clearly recognized nor fully articulated by our highest court until after all appeals from petitioner's judgment of conviction had come to an end. Under these circumstances, it appears that habeas corpus is a proper method for challenging this alleged violation. (See People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653; People ex rel. Gallo v. Warden of Greenhaven State Prison, 32 A.D.2d 1051, 303 N.Y.S.2d 752.)

Nevertheless, on the merits of the application, petitioner seeks impermissibly to have the holding in People v. Rogers (supra) applied retroactively to his criminal case, which had completed the appellate process prior to the Rogers decision. As was stated by the Court of...