Opinion
July 13, 1979
Appeal from the Oneida Supreme Court.
Present — Hancock, Jr., J.P., Schnepp, Callahan, Doerr and Witmer, JJ.
Judgment unanimously affirmed. Memorandum: Relator appeals from a determination of Supreme Court, Oneida County, which dismissed his petition for a writ of habeas corpus on jurisdictional grounds. On September 20, 1978, defendant was indicted for criminal sale of a controlled substance and criminal possession of a controlled substance. He was released on $10,000 bail. Thereafter he was indicted for kidnapping, unlawful imprisonment, criminal solicitation, tampering with a witness, and attempted murder of the principal witness against him on the drug charges. On October 18, 1978, he was arraigned and remanded to county jail without bail. After a formal application for bail was denied, defendant filed the instant petition for a writ of habeas corpus. An order denying bail, although not appealable (see CPL 450.10, 450.15 Crim. Proc.), may be reviewed in a habeas corpus proceeding (People ex rel. Klein v. Krueger, 25 N.Y.2d 497). While de novo determination of bail in collateral proceedings is not permitted, it would have been proper for the court to have reviewed in the habeas corpus proceeding the constitutional inhibitions against excessive bail (People ex rel. Rosenthal v. Wolfson, 65 A.D.2d 113; see US Const, 8th Amdt; N Y Const, art I, § 5). Rather than remit to Supreme Court, we have reviewed the record and in our view the discretionary denial of bail under the facts in this case was proper.