Opinion
December 31, 1998
Appeal from Judgment of Supreme Court, Erie County, Flaherty, J. — Habeas Corpus.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied the petition for a writ of habeas corpus. Relator is not entitled to habeas corpus relief based upon the alleged ineffective assistance of appellate counsel "because the only remedy to which he would be entitled would be * * * a new appeal, and not a direction that he be immediately released from custody" ( People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 649). The denial of relator's application for a writ of error coram nobis, also based upon the alleged ineffectiveness of appellate counsel ( People v. Rios, 228 A.D.2d 526), does not provide a basis for habeas corpus relief. The absence of a procedure permitting review of the denial of the coram nobis application does not deprive relator of due process of law or render his detention illegal ( see, People v. Gersewitz, 294 N.Y. 163, 168, cert dismissed 326 U.S. 687; see also, People ex rel. Sedlak v. Foster, 299 N.Y. 291, 294).
Present — Green, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ.