Opinion
June 20, 1988
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
We have reviewed the record and agree with the petitioner's assigned counsel that there are no meritorious issues which could be raised on this appeal.
Since the petitioner would not be entitled to immediate release from the custody he is challenging, the habeas corpus proceeding was appropriately dismissed (see, People ex rel. Mack v Reid, 113 A.D.2d 962; People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 93 A.D.2d 768, affd 60 N.Y.2d 648). The petitioner has made at least nine prior Federal and State postconviction applications seeking to overturn, on the ground of ineffective assistance of counsel, his convictions for murder and attempted murder, which convictions were affirmed in 1973 by the Appellate Division, First Department (see, People v Hall, 43 A.D.2d 816). All of these postconviction applications have been denied without a hearing on the merits. In at least two prior Federal proceedings, the State sustained its burden of proving prejudice by reason of the death of the petitioner's trial attorney and the petitioner's wife, both of whom were two essential rebuttal witnesses. As a result, controlling weight should be given to the denial of these prior applications for Federal habeas corpus relief (see, Sanders v United States, 373 U.S. 1, 15; Price v Johnston, 334 U.S. 266, 291-292; United States v Romano, 516 F.2d 768, 771, cert denied 423 U.S. 994). Accordingly, counsel's application for leave to withdraw as counsel is granted (see, Anders v California, 386 U.S. 738; People v Paige, 54 A.D.2d 631; cf., People v Gonzalez, 47 N.Y.2d 606).
We have reviewed the contentions raised in the appellant's supplemental pro se brief and find them to be without merit. Thompson, J.P., Brown, Weinstein and Rubin, JJ., concur.