Opinion
October 18, 1990
Appeal from the Supreme Court, Ulster County (Torraca, J.).
On August 5, 1976, petitioner was convicted after trial of four counts of murder in the second degree and one count of robbery in the first degree arising out of a double murder at, and a robbery of, a supermarket which occurred on July 21, 1975. On appeal the conviction was affirmed (People v. Rodriguez, 67 A.D.2d 837, lv denied 46 N.Y.2d 1084). In June 1989, petitioner made the instant application for a writ of habeas corpus alleging that the standard for custodial interrogation by police was retroactively changed by Dunaway v. New York ( 442 U.S. 200) from reasonable suspicion (see, People v. Morales, 22 N.Y.2d 55) to the higher standard of probable cause. Supreme Court denied the application concluding that such an error should have been raised on defendant's direct appeal or in a postconviction CPL article 440 motion. The court held that Dunaway v. New York (supra) was effective retroactively only on direct appeals, and that petitioner failed to comply with CPLR 7002 (c) (6) by identifying his other applications for writs of habeas corpus. We affirm.
Habeas corpus is not an appropriate remedy to raise issues which were or could have been advanced on direct appeal or in a CPL article 440 motion (People ex rel. Best v. Kuhlmann, 151 A.D.2d 937; People ex rel. Rosado v. Miles, 138 A.D.2d 808). The facts alleged herein were known and were asserted at trial, and to the extent that petitioner's appellate process had not been exhausted at the time Dunaway v. New York (supra) was handed down, were not raised (see, People v. Cappiello 85 A.D.2d 608, lv denied 56 N.Y.2d 595). Moreover petitioner does not now allege that the lower standard was applied in his case, but rather contends that the County Court did not apply the reasonable suspicion standard and did apply a standard higher than subsequently required by Dunaway v. New York (supra). Petitioner contends this deprived him of the opportunity to litigate his claim, and accordingly deprived him of his US Constitution 4th Amendment rights. We disagree. The application of the higher standard in this case jealously safeguarded petitioner's constitutional rights and petitioner was not prejudiced thereby. Moreover, petitioner's application was properly dismissed because it failed to comply with CPLR 7002 (c) (6) (see, Matter of Tullis v. Kelly, 154 A.D.2d 926) and in any event would not have resulted in petitioner's immediate release (see, People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648; see also, People v. Coleman, 56 N.Y.2d 669).
Petitioner did not seek further appellate review or relief after his leave to appeal was denied even while there remained time to do so after Dunaway v. New York (supra) was handed down.
Judgment affirmed, without costs. Casey, J.P., Weiss, Levine, Mercure and Harvey, JJ., concur.