PEOPLE MANCUSO v. HERBERT

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York ex rel. Alfred MANCUSO, Appellant, v. Victor HERBERT, Superintendent, Collins Correctional Facility, Respondent.

Decided: December 31, 1998

PRESENT:  DENMAN, P.J., GREEN, HAYES, BALIO and BOEHM, JJ. Scott Brown, Derby, for Appellant. Caroline Donhauser, Brooklyn, for Respondent.

Supreme Court properly denied without a hearing the petition seeking a writ of habeas corpus.   A petition should be denied without a hearing “[i]f it appears from the petition or the documents annexed thereto that the person is not illegally detained” (CPLR 7003[a] ).   The issues raised by relator concerning the alleged Brady and Rosario violations and the alleged defective Grand Jury proceeding were, or could have been, raised on direct appeal or by a CPL article 440 motion (see, People ex rel. Abdullah v. Walker, 199 A.D.2d 1074, 608 N.Y.S.2d 902, lv. denied 83 N.Y.2d 752, 611 N.Y.S.2d 134, 633 N.E.2d 489).   In any event, the court properly determined that those issues are meritless (see, People ex rel. Rosado v. Miles, 138 A.D.2d 808, 526 N.Y.S.2d 43).   Relator's first and second contentions were raised in CPL article 440 motions and rejected by the Second Department (People v. Mancuso, 232 A.D.2d 658, 649 N.Y.S.2d 458, lv. denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508) and in an unpublished decision by Supreme Court, Kings County.   The court properly found that relator's third contention regarding an alleged conspiracy between a Supreme Court, Kings County, Justice and an Assistant District Attorney was based on nothing more than speculation.   Because a hearing was not held, the contention of relator that he was improperly denied a transcript lacks merit.

Judgment unanimously affirmed without costs.

MEMORANDUM: