People State New York Ex Rel. John Henry Burts v. Robert J. Henderson

Judgment unanimously affirmed. Memorandum: On this appeal from a dismissal of his writ of habeas corpus without a hearing, relator contends that he was unlawfully tried and convicted, in absentia, of second degree assault and that because of the delay of over one year by the Public Defender in preparing his appeal from the judgment of conviction, habeas corpus was the proper remedy in which to assert the alleged violations of his statutory and constitutional rights. ""Departure from traditional orderly proceedings, such as appeal, should be permitted only when dictated * * * by reason of practicality and necessity"" (People ex rel. Keitt v McMann, 18 N.Y.2d 257, 262; see, also, People ex rel. Jenkins v Smith, 58 A.D.2d 1033). Inasmuch as relator's appeal from his judgment of conviction is presently before this court, his writ of habeas corpus was properly dismissed (People ex rel. Schaurer v Fogg, 59 A.D.2d 1072; cf. People ex rel. Lee v Smith, 58 A.D.2d 987).