Opinion
January 14, 1985
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Judgment affirmed, without costs or disbursements.
Petitioner was convicted in the Supreme Court, Bronx County, of robbery in the first degree and sentenced to an indeterminate term of imprisonment of 10 to 20 years. The judgment of conviction was subsequently affirmed by the Appellate Division, First Department ( People v. Williams, 90 A.D.2d 696, application for lv to app den 58 N.Y.2d 696).
Petitioner thereafter instituted this habeas corpus proceeding, in which he alleges, inter alia, that he was arrested in his home without a warrant, in violation of the rule announced in Payton v. New York ( 445 U.S. 573). Petitioner concedes that this issue was raised in the trial court and on his direct appeal from the judgment of conviction.
Under these circumstances, the petition was properly denied. Habeas corpus is not a substitute for appeal ( People ex rel. Melvin v. Warden, 94 A.D.2d 808) and does not lie to permit review of claimed errors already considered on an earlier appeal ( People ex rel. Small v. Scully, 92 A.D.2d 943, mot for lv to app den 59 N.Y.2d 605). Furthermore, habeas corpus does not lie where petitioner's claims, even if meritorious, would result in suppression of evidence and a new trial, not an immediate release from custody ( People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 93 A.D.2d 768, affd 60 N.Y.2d 648; see, also, People ex rel. Vasquez v. Scully, 105 A.D.2d 722; People ex rel. Malik v. Reynolds, 96 A.D.2d 708, mot for lv to app den 60 N.Y.2d 558).
Petitioner is simply attempting to utilize habeas corpus as a vehicle for relitigating issues that have already been considered at both the nisi prius and appellate levels. Therefore, the petition was properly denied. Mollen, P.J., Bracken, O'Connor and Niehoff, JJ., concur.