Opinion
July 17, 1986
Appeal from the Supreme Court, Ulster County (Klein, J.).
Six years ago, Special Term dismissed the instant writ of habeas corpus from the Bench. At that time, petitioner, then (and still) an inmate at Eastern Correctional Facility, sought to relitigate his postjudgment challenges to two separate convictions (one the result of a nonjury trial and the other upon his guilty plea) for felony murder, for which concurrent prison sentences of 25 years to life had been imposed. Not only were those convictions appealed and affirmed (People v Frazier, 40 A.D.2d 555), but petitioner thereafter brought an undisclosed number of CPL article 440 motions to vacate them as well as Federal and State writ of habeas corpus petitions, all of which have been unsuccessful.
Special Term, held that it was foreclosed from considering those issues which had been rejected by the earlier decisions; as to any other issues, the court advised petitioner to proceed via CPL article 440. The thrust of petitioner's substantive claim is that there was no probable cause for his arrest; therefore, the confession taken from him, and the gun found as a consequence, were illegally admitted into evidence. He relies heavily on Dunaway v New York ( 442 U.S. 200), arguing that he was unable to raise this issue at trial or on direct appeal before because Dunaway had not been decided until after his direct appeal was exhausted.
The decision by Special Term was never reduced to a judgment or order. As a general rule, no appeal lies except from a judgment or an order (CPLR 5501; see, Burometto v Town of Schodack, 85 A.D.2d 805, appeal dismissed 55 N.Y.2d 1036). Moreover, the only remedy petitioner would be entitled to in any event would be a new trial — not his immediate release from custody — and habeas corpus is unavailable for that purpose (People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 N.Y.2d 648; People ex rel. Hall [Haralambou] v LeFevre, 92 A.D.2d 956, 957, affd 60 N.Y.2d 579).
Appeal dismissed, without costs. Mahoney, P.J., Kane, Weiss, Mikoll and Yesawich, Jr., JJ., concur.