Opinion
April 24, 1975
Appeal from a judgment of the Supreme Court at Special Term, entered September 17, 1974 in Clinton County, which denied petitioner's application for a writ of habeas corpus without a hearing. The petitioner contends that he was denied his right to assistance by effective counsel during the proceedings which resulted in a judgment of conviction for murder because his assigned counsel was physically incapacitated. In support of such allegations he quotes from the record of the proceedings and, therefore, it cannot be said that his application would be insufficient in regard to factual allegations. However, the application does establish that the questions now sought to be raised by habeas corpus were raised in the record of the original proceedings and could have been raised in the appeal taken from the original judgment of conviction (People v White, 39 A.D.2d 1018). Accordingly, Special Term properly denied the application since it appears that the petitioner is not illegally detained. Judgment affirmed, without costs. Herlihy, P.J., Greenblott, Main, Larkin and Reynolds, JJ., concur.