Opinion
October 21, 1985
Appeal from the Supreme Court, Queens County (Leahy, J.).
Judgment affirmed, without costs or disbursements.
The petition challenged the prosecutor's waiver of an opening statement in petitioner's nonjury trial and the constitutionality of CPL 320.20 (3) (a) insofar as that statute permits such a waiver. These challenges had been made on the direct appeal from petitioner's conviction, and were considered and rejected by this court (People v Jones, 74 A.D.2d 613, lv denied 49 N.Y.2d 894, 1004, cert denied 447 U.S. 927; see, People v Rivara, 33 A.D.2d 567). Since habeas corpus does not lie to permit review of claimed errors already considered on direct appeal, the petition was properly denied (e.g., People ex rel. Williams v Scully, 107 A.D.2d 729; People ex rel. Small v Scully, 92 A.D.2d 943, lv denied 59 N.Y.2d 605). Moreover, habeas corpus is inappropriate in this case since, even if meritorious, petitioner's claims would at best result in a new trial, not release from custody (e.g., People ex rel. Kaplan v Commissioner of Correction of City of N Y, 93 A.D.2d 768, affd 60 N.Y.2d 648; People ex rel. Douglas v Vincent, 50 N.Y.2d 901). We have examined petitioner's remaining argument and find it to be without merit. Mangano, J.P., Thompson, Brown and Eiber, JJ., concur.