Opinion
June 7, 1979
Appeal from a judgment of the Supreme Court at Special Term, entered December 11, 1978 in Clinton County, which denied appellant's application for a writ of habeas corpus. On September 15, 1977, appellant was sentenced in New York County Supreme Court to an indeterminate term of 7 1/2 to 15 years following his conviction, after trial, of manslaughter in the first degree. Appellant applied for a writ of habeas corpus in November, 1978. In his petition, appellant asserted that an appeal was then pending in the Appellate Division, First Department, from the judgment of conviction being challenged in the present proceeding. As the Court of Appeals has stated, "Departure from traditional orderly proceedings, such as appeal, should be permitted only when dictated * * * by reason of practicality and necessity" (People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262). We find no such reason present herein, and, therefore, in view of appellant's pending appeal, the petition for a writ of habeas corpus was properly dismissed (People ex rel. Burts v Henderson, 64 A.D.2d 1009; People ex rel. McChesney v. Draxler, 59 A.D.2d 952; People ex rel. Spindel v. La Vallee, 33 A.D.2d 968). Judgment affirmed, without costs. Sweeney, J.P., Kane, Staley, Jr., Main and Mikoll, JJ., concur.