PEOPLE MERRIWEATHER v. MILLER (1997)

Appeal from a judgment of the Supreme Court (Torraca, J.), entered September 12, 1996 in Ulster County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Following a jury trial, petitioner was convicted of the crimes of attempted robbery in the first degree and assault in the second degree and sentenced, as a persistent violent felony offender, to concurrent prison terms of 22 years to life and 15 years to life, respectively.   Defendant's conviction was subsequently affirmed by the First Department (People v. Merriweather, 175 A.D.2d 90, 572 N.Y.S.2d 680, lv. denied 78 N.Y.2d 1013, 575 N.Y.S.2d 821, 581 N.E.2d 1067).   Thereafter, following several unsuccessful legal proceedings in Federal court relative to his conviction, petitioner commenced this habeas corpus proceeding pursuant to CPLR article 70.   Supreme Court denied petitioner's application without a hearing, and this appeal by petitioner ensued.

 We affirm.   In support of his application for habeas corpus relief, petitioner contended that his right against self-incrimination had been violated and that the prosecutor had engaged in certain misconduct during the course of his trial.   These very issues, however, were raised and addressed by the First Department on petitioner's direct appeal and, as such, do not provide a basis for habeas corpus relief (see, e.g., People ex rel. Franza v. Stinson, 239 A.D.2d 643, 657 N.Y.S.2d 372, 373, appeal dismissed 90 N.Y.2d 843, 660 N.Y.S.2d 869, 683 N.E.2d 775;  People ex rel. Curry v. Batista, 236 A.D.2d 724, 654 N.Y.S.2d 698).¹  Moreover, inasmuch as petitioner's remedy in this regard would be a new trial, not immediate release from prison, habeas corpus relief would not be appropriate in any event (see, People ex rel. Fisher v. Leonardo, 200 A.D.2d 844, 606 N.Y.S.2d 802, lv. denied 83 N.Y.2d 754, 612 N.Y.S.2d 108, 634 N.E.2d 604).   Petitioner's remaining contentions have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Contrary to petitioner's assertion, the mere fact that the First Department disposed of these issues on procedural grounds does not alter our conclusion in this regard.

CREW, Justice Presiding.

WHITE, YESAWICH, SPAIN and CARPINELLO, JJ., concur.