Opinion
December 1, 1975
In a habeas corpus proceeding, the appeal (transferred to this court) is from a judgment of the Supreme Court, Washington County, entered May 21, 1975, which, after a hearing, granted the petition and remanded petitioner to Queens County for a retrial on Indictment No. 3191-73. Judgment reversed, on the law, without costs, and writ and petition dismissed. The pendency of petitioner's direct appeal from the judgment of conviction made the granting of the petition in this proceeding improper (People ex rel. Keitt v McMann, 18 N.Y.2d 257; People ex rel. Garcia v Warden, Sing Sing Prison, 28 A.D.2d 682, mot for lv to app den 20 N.Y.2d 645). In addition, the substantive contentions upon which petitioner bases his claim that he was illegally detained are without merit (see People v Pina, 49 A.D.2d ___; People v Williams, 47 A.D.2d 262). Consequently, the petition should have been dismissed. Gulotta, P.J., Rabin, Martuscello, Latham and Shapiro, JJ., concur.