PEOPLE RIVERA v. SMITH (1997)

 Supreme Court properly dismissed the petition for a writ of habeas corpus.   Relator is not entitled to habeas corpus relief based upon his contentions that he was deprived of his right to appeal and his right to effective assistance of appellate counsel, and that a newly discovered witness might have exonerated him upon a retrial.   Relator's appeal has in fact been perfected and decided (People v. Rivera, 234 A.D.2d 148, 652 N.Y.S.2d 2, lv. denied 89 N.Y.2d 946, 655 N.Y.S.2d 897, 678 N.E.2d 510;  cf., People ex rel. Lee v. Smith, 58 A.D.2d 987, 397 N.Y.S.2d 266), and “the only remedy to which he would be entitled would be a new trial or new appeal, and not a direction that he be immediately released from custody” (People ex rel. Kaplan v. Commissioner of Correction of City of N. Y., 60 N.Y.2d 648, 649, 467 N.Y.S.2d 566, 454 N.E.2d 1309;  see, People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 903, 431 N.Y.S.2d 518, 409 N.E.2d 990).   The contention of relator that he was deprived of effective assistance of appellate counsel may properly be raised by a motion for a writ of error coram nobis (see, People v. Bachert, 69 N.Y.2d 593, 595-596, 516 N.Y.S.2d 623, 509 N.E.2d 318).

Judgment unanimously affirmed without costs.

MEMORANDUM: