Opinion
July 15, 1982
Appeal from a judgment of the Supreme Court at Special Term (Graves, J.), entered August 24, 1981 in Clinton County, which dismissed petitioner's application for a writ of habeas corpus after a hearing. Petitioner seeks a writ of habeas corpus alleging errors in his conviction for robbery in the first and second degrees and unlawful possession of stolen property. The errors alleged by petitioner are now on review in a direct appeal from his judgment of conviction. Review by way of habeas corpus is generally not available when an appeal of the underlying conviction is pending ( People ex rel. Keitt v. McMann, 18 N.Y.2d 257; People ex rel. Ellis v. LeFevre, 70 A.D.2d 967). The writ could not in any event be sustained in view of the fact that petitioner is also incarcerated after conviction for escape in the second degree, which conviction is not being challenged by him in these proceedings. Petitioner would, therefore, not be entitled to relief by way of habeas corpus since he is otherwise legally detained. Judgment affirmed, without costs. Kane, J.P., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.