ARTICLE 70

New York Consolidated Laws CVP [CPLR] - Civil Practice Law and Rules

ARTICLE 70 HABEAS CORPUS

7001. Application of article; special proceeding.

7002. Petition.

(a) By whom made.

(b) To whom made.

7003. When the writ shall be issued.

(a) Generally.

(b) Successive petitions for writ.

7004. Content of writ.

(a) For whom issued.

(b) To whom directed.

(d) When returnable.

(e) Expenses; undertaking.

7005. Service of the writ.

7006. Obedience to the writ.

(a) Generally; defects in form.

(b) Compelling obedience.

7007. Warrant preceding or accompanying writ.

7008. Return.

(a) When filed and served.

(b) Content.

7009. Hearing.

(a) Notice before hearing.

(b) Reply to return.

(d) Sickness or infirmity of person detained.

(e) Custody during proceeding.

7010. Determination of proceeding.

(a) Discharge.

(b) Bail.

7011. Appeal.

7012. Redetention after discharge.

§  7001.  Application of article; special proceeding.

Except as otherwise prescribed by statute, the provisions of this article are applicable to common law or statutory writs of habeas corpus and common law writs of certiorari to inquire into detention.  A proceeding under this article is a special proceeding.

§ 7002. Petition.

(a) By whom made. A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his behalf or a party in a child abuse proceeding subsequent to an order of the family court, may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance. A judge authorized to issue writs of habeas corpus having evidence, in a judicial proceeding before him, that any person is so detained shall, on his own initiative, issue a writ of habeas corpus for the relief of that person.

(b) To whom made. Except as provided in paragraph five of this subdivision, a petition for the writ shall be made to:

1. the supreme court in the judicial district in which the person is detained; or

2. the appellate division in the department in which the person is detained; or

3. any justice of the supreme court; or

4. a county judge being or residing within the county in which the person is detained; where there is no judge within the county capable of issuing the writ, or if all within the county capable of doing so have refused, the petition may be made to a county judge being or residing within an adjoining county.

5. in a city having a population of one million or more inhabitants, a person held as a trial inmate in a city detention institution shall petition for a writ to the supreme court in the county in which the charge for which the inmate is being detained is pending. Such inmate may also petition for a writ to the appellate division in the department in which he is detained or to any justice of the supreme court provided that the writ shall be made returnable before a justice of the supreme court held in the county in which the charge for which the inmate is being detained is pending.

(c) Content. The petition shall be verified and shall state, or shall be accompanied by an affidavit which shall state,

1. that the person in whose behalf the petition is made is detained, naming the person by whom he is detained and the place of detention if they are known, or describing them if they are not known; where the detention is by virtue of a mandate, a copy of it shall be annexed to the petition, or sufficient reason why a copy could not be obtained shall be stated;

2. the cause or pretense of the detention, according to the best knowledge and belief of the petitioner;

3. that a court or judge of the United States does not have exclusive jurisdiction to order him released;

4. if the writ is sought because of an illegal detention, the nature of the illegality;

5. whether any appeal has been taken from any order by virtue of which the person is detained, and, if so, the result;

6. the date, and the court or judge to whom made, of every previous application for the writ, the disposition of each such application and of any appeal taken, and the new facts, if any, presented in the petition that were not presented in any previous application; and

7. if the petition is made to a county judge outside the county in which the person is detained, the facts which authorize such judge to act.

§ 7003. When the writ shall be issued.

(a) Generally. The court to whom the petition is made shall issue the writ without delay on any day, or, where the petitioner does not demand production of the person detained or it is clear that there is no disputable issue of fact, order the respondent to show cause why the person detained should not be released. If it appears from the petition or the documents annexed thereto that the person is not illegally detained or that a court or judge of the United States has exclusive jurisdiction to order him released, the petition shall be denied.

(b) Successive petitions for writ. A court is not required to issue a writ of habeas corpus if the legality of the detention has been determined by a court of the state on a prior proceeding for a writ of habeas corpus and the petition presents no ground not theretofore presented and determined and the court is satisfied that the ends of justice will not be served by granting it.

(c) Penalty for violation. For a violation of this section in refusing to issue the writ, a judge, or, if the petition was made to a court, each member of the court who assents to the violation, forfeits to the person detained one thousand dollars, to be recovered by an action in his name or in the name of the petitioner to his use.

§ 7004. Content of writ.

(a) For whom issued. The writ shall be issued on behalf of the state, and where issued upon the petition of a private person, it shall show that it was issued upon his relation.

(b) To whom directed. The writ shall be directed to, and the respondent shall be, the person having custody of the person detained.

(c) Before whom returnable. A writ to secure the discharge of a person from a state institution shall be made returnable before a justice of the supreme court or a county judge being or residing within the county in which the person is detained; if there is no such judge it shall be made returnable before the nearest accessible supreme court justice or county judge. In all other cases, the writ shall be made returnable in the county where it was issued, except that where the petition was made to the supreme court or to a supreme court justice outside the county in which the person is detained, such court or justice may make the writ returnable before any judge authorized to issue it in the county of detention.

(d) When returnable. The writ may be made returnable forthwith or on any day or time certain, as the case requires.

(e) Expenses; undertaking. A court issuing a writ directed to any person other than a public officer may require the petitioner to pay the charges of bringing up the person detained and to deliver an undertaking to the person having him in custody, in an amount fixed by the court, to pay the charges for taking back the person detained if he should be remanded. Service of the writ shall not be complete until such charge is paid or tendered and such undertaking is delivered.

§ 7005. Service of the writ.

A writ of habeas corpus may be served on any day. Service shall be made by delivering the writ and a copy of the petition to the person to whom it is directed. If he cannot with due diligence be found, the writ may be served by leaving it and a copy of the petition with any person who has custody of the person detained at the time. Where the person to whom the writ is directed conceals himself or refuses admittance, the writ may be served by affixing it and a copy of the petition in a conspicuous place on the outside either of his dwelling or of the place where the person is detained and mailing a copy of the writ and the petition to him at such dwelling or place, unless the court which issues the writ determines, for good cause shown, that such mailing shall be dispensed with, or directs service in some other manner which it finds reasonably calculated to give notice to such person of the proceeding. If the person detained is in the custody of a person other than the one to whom the writ is directed, a copy of the writ may be served upon the person having such custody with the same effect as if the writ had been directed to him.

§ 7006. Obedience to the writ.

(a) Generally; defects in form. A person upon whom the writ or a copy thereof is served, whether it is directed to him or not, shall make a return to it and, if required by it, produce the body of the person detained at the time and place specified, unless the person detained is too sick or infirm to make the required trip. A writ of habeas corpus shall not be disobeyed for defect of form so long as the identity of the person detained may be derived from its contents.

(b) Compelling obedience. If the person upon whom the writ or a copy thereof is served refuses or neglects fully to obey it, without showing sufficient cause, the court before whom the writ is returnable, upon proof of its service, shall forthwith issue a warrant of attachment against him directed to the sheriff in any county in which such person may be found requiring him to be brought before the court issuing the warrant; he may be ordered committed in close custody to the county jail until he complies with the order of the court. Where such person is a sheriff, the warrant shall be directed to a person specifically designated to execute it. Such person shall have power to call to his aid the same assistance as the sheriff in executing the warrant; a sheriff shall be committed to a jail in a county other than his own.

(c) Precept to bring up person detained. A court issuing a warrant of attachment as prescribed in subdivision (b) may at the same time, or thereafter, issue a precept to the person to whom the warrant is directed ordering him immediately to bring before the court the person detained.

§ 7007. Warrant preceding or accompanying writ.

A court authorized to issue a writ of habeas corpus, upon satisfactory proof that a person is wrongfully detained and will be removed from the state or suffer irreparable injury before he can be relieved by habeas corpus, shall issue a warrant of attachment directed to an appropriate officer requiring him immediately to bring the person detained before the court. A writ of habeas corpus directed to the person having custody of the person detained shall also be issued. Where it appears that the detention constitutes a criminal offense, the warrant may order the apprehension of the person responsible for the detention, who shall then be brought before the court issuing the warrant and examined as in a criminal case.

§ 7008. Return.

(a) When filed and served. The return shall consist of an affidavit to be served in the same manner as an answer in a special proceeding and filed at the time and place specified in the writ, or, where the writ is returnable forthwith, within twenty-four hours after its service.

(b) Content. The affidavit shall fully and explicitly state whether the person detained is or has been in the custody of the person to whom the writ is directed, the authority and cause of the detention, whether custody has been transferred to another, and the facts of and authority for any such transfer. A copy of any mandate by virtue of which the person is detained shall be annexed to the affidavit, and the original mandate shall be produced at the hearing; where the mandate has been delivered to the person to whom the person detained was transferred, or a copy of it cannot be obtained, the reason for failure to produce it and the substance of the mandate shall be stated in the affidavit.

§ 7009. Hearing.

(a) Notice before hearing. Where the detention is by virtue of a mandate, the court shall not adjudicate the issues in the proceeding until written notice of the time and place of the hearing has been served either personally eight days prior to the hearing, or in any other manner or time as the court may order,

1. where the mandate was issued in a civil cause, upon the person interested in continuing the detention or upon his attorney; or,

2. where a person is detained by order of the family court, or by order of any court while a proceeding affecting him or her is pending in the family court, upon the judge who made the order. In all such proceedings, the court shall be represented by the attorney-general; or,

3. in any other case, upon the district attorney of the county in which the person was detained when the writ was served and upon the district attorney of the county from which he was committed.

(b) Reply to return. The petitioner or the person detained may deny under oath, orally or in writing, any material allegation of the answering affidavits or allege any fact showing that the person detained is entitled to be discharged.

(c) Hearing to be summary. The court shall proceed in a summary manner to hear the evidence produced in support of and against the detention and to dispose of the proceeding as justice requires.

(d) Sickness or infirmity of person detained. Where it is proved to the satisfaction of the court that the person detained is too sick or infirm to be brought to the appointed place, the hearing may be held without his presence, may be adjourned, or may be held at the place where the prisoner is detained.

(e) Custody during proceeding. Pending final disposition, the court may place the person detained in custody or parole him or admit him to bail as justice requires.

§ 7010. Determination of proceeding.

(a) Discharge. If the person is illegally detained a final judgment shall be directed discharging him forthwith. No person detained shall be discharged for a defect in the form of the commitment, or because the person detaining him is not entitled to do so if another person is so entitled. A final judgment to discharge a person may be enforced by the court issuing the order by attachment in the manner prescribed in subdivision (b) of section 7006.

(b) Bail. If the person detained has been admitted to bail but the amount fixed is so excessive as to constitute an abuse of discretion, and he is not ordered discharged, the court shall direct a final judgment reducing bail to a proper amount. If the person detained has been denied bail, and he is not ordered discharged, the court shall direct a final judgment admitting him to bail forthwith, if he is entitled to be admitted to bail as a matter of right, or if it appears that the denial of bail constituted an abuse of discretion. Such judgment must fix the amount of bail, specify the time and place at which the person detained is required to appear, and order his release upon bail being given in accordance with the criminal procedure law.

(c) Remand. If the person detained is not ordered discharged and not admitted to bail, a final judgment shall be directed dismissing the proceeding, and, if he was actually produced in court, remanding him to the detention from which he was taken, unless the person then detaining him was not entitled to do so, in which case he shall be remanded to proper detention.

§ 7011. Appeal.

An appeal may be taken from a judgment refusing to grant a writ of habeas corpus or refusing an order to show cause issued under subdivision (a) of section 7003, or from a judgment made upon the return of such a writ or order to show cause. A person to whom notice is given pursuant to subdivision (a) of section 7009 is a party for purposes of appeal. The attorney-general may appeal in the name of the state in any case where a district attorney might do so. Where an appeal from a judgment admitting a person to bail is taken by the state, his release shall not be stayed thereby.

§ 7012. Redetention after discharge.

A person discharged upon the return of a writ of habeas corpus shall not be detained for the same cause, except by virtue of a subsequent lawful mandate.