Opinion
October 26, 1970
Appeal from a judgment of the Supreme Court, entered January 15, 1969 in Clinton County, which dismissed a writ of habeas corpus. The pertinent facts in this habeas corpus proceeding are sufficiently set forth in Matter of Greene v. Supreme Court ( 31 A.D.2d 649). That decision was handed down December 23, 1968. The Appellate Division, Second Department, refused to restore the proceeding to Special Term, Westchester County, but stated that the transfer of the proceeding to Supreme Court, Clinton County, without a motion was irregular (cf. CPLR 509, 510), and that the Attorney-General should promptly obtain an order changing the venue of the proceeding to Clinton County. Admittedly no such order was ever obtained. The records in the proceeding had already been transferred to Clinton County in September, 1968, the purported hearing on the writ had been held on December 9, 1968 and judgment dismissing the writ entered on January 15, 1969. Subsequent to its transfer to Supreme Court, Clinton County, the matter was set down for hearing before Judge SHERLOCK E. HALEY, as Acting Supreme Court Justice. On the return date of the hearing on December 9, 1968, petitioner, who was represented by counsel, took the position that the court lacked jurisdiction. His assigned counsel also made it clear that he was not arguing the merits of the proceeding. The writ was dismissed, however, on the merits. Petitioner contends that the writ should be heard in Westchester County where it was made returnable originally and where all of the witnesses are located, where all the records are, and where a down-State attorney can be assigned, one who is familiar with trial practice in that area. It is obvious that petitioner has not had a full and adequate hearing on this writ. Although we do not decide the jurisdictional issue, we do conclude that since petitioner is detained in Clinton County, the hearing on this habeas corpus proceeding should be held there (CPLR 7004, subd. [c]). The Attorney-General should obtain the necessary order substituting the Warden of Dannemora Prison in place of respondent. Judgment reversed, on the law, and proceedings remanded to Supreme Court, Clinton County, for a hearing. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.