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People ex rel. Allen v. Maribel

Supreme Court of New York, Second Department

June 12, 2013

People ex rel. Carl Allen, appellant,
v.
Evelyn Maribel, etc., respondent. Index No. 390/10

Carl Allen, East Elmhurst, N.Y., appellant pro se.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Richmond County (Rienzi, J.), dated December 8, 2011, which, without a hearing, denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

During the course of a pending criminal action against the petitioner on the charge of murder in the second degree, the petitioner commenced this proceeding pro se, seeking a writ of habeas corpus on the ground that preindictment delay in the commencement of the prosecution violated his constitutional right to due process (see generally People v Singer, 44 N.Y.2d 241). Generally, "[h]abeas corpus does not lie to determine whether the right to a speedy trial has been denied in a pending criminal action" (People ex rel. Harrison v Greco, 38 N.Y.2d 1025; see People ex rel. McDonald v Warden, N.Y. City House of Detention for Men, 34 N.Y.2d 554, 555). Rather, the issue could be raised on the petitioner's direct appeal from any judgment of conviction rendered against him (see People ex rel. Hunter v Buffardi, 15 A.D.3d 736; People ex rel. Braxton v Warden, 254 A.D.2d 381). Contrary to the petitioner's contention, the circumstances of this case did not present a situation where "[d]eparture from traditional orderly proceedings, such as appeal, should be permitted... by reason of practicality and necessity" (People ex rel. Keitt v McMann, 18 N.Y.2d 257, 262; see People ex rel. Chakwin v Warden, N.Y. City Correctional Facility, Rikers Is., 63 N.Y.2d 120, 125; People ex rel. Latta v Morgenthau, 73 A.D.3d 593). Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.

ANGIOLILLO, J.P., HALL, ROMAN and HINDS-RADIX, JJ., concur.


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