People ex rel. Taylor v. Commissioner of Correction

• Decision Date: 05 March 1984
• Citation: 472 N.Y.S.2d 736,100 A.D.2d 525
• Parties: The PEOPLE, etc., ex rel. Rodney TAYLOR, Appellant, v. COMMISSIONER OF CORRECTIONS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 736

472 N.Y.S.2d 736

100 A.D.2d 525

The PEOPLE, etc., ex rel. Rodney TAYLOR, Appellant, v. COMMISSIONER OF CORRECTIONS, Respondent.

Supreme Court, Appellate Division, Second Department.

March 5, 1984.

John F. Clennan, Selden, for appellant.

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

Before TITONE, J.P., and BRACKEN, BROWN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, petitioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Dutchess County, dated July 26, 1982, as dismissed that part of the petition as challenged certain judgments of conviction rendered in Ulster County upon the ground that he did not receive effective assistance of counsel.

Judgment affirmed insofar as appealed from, without costs or disbursements.

At the time that petitioner commenced this proceeding, the latest in a series of habeas corpus petitions (see, e.g., People ex rel. Taylor v. Mayone, 77 A.D.2d 953), the Appellate Division, Third Department had affirmed one of the judgments of conviction (People v. Taylor, 64 A.D.2d 998, 408 N.Y.S.2d 835, mot. for lv. to app. den. 46 N.Y.2d 1085, 416 N.Y.S.2d 1040, 390 N.E.2d 315). In the interim between the issuance of the judgment under review and the perfection of this appeal, the other judgment of conviction was also affirmed by the Appellate Division, Third Department (People v. Taylor, 91 A.D.2d 729, 457 N.Y.S.2d 1005, mot. for lv. to app. den. 58 N.Y.2d 1123, 462 N.Y.S.2d 1041, 449 N.E.2d 757). The question of effective assistance of counsel was explicitly rejected in the latter decision. Habeas corpus may not be utilized to review claimed errors already passed upon on a direct appeal (People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 220 N.E.2d 653; People ex rel. Myers v. Dalsheim, 97 A.D.2d 447, 467 N.Y.S.2d 822). Further, habeas corpus would not lie with respect to either judgment because the claims, even if meritorious, would result in new trials, not release from custody (People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 467 N.Y.S.2d 566, 454 N.E.2d 1309; People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 431 N.Y.S.2d 518, 409 N.E.2d 990).