New York Civil Practice
Law & Rules

NYCPLR Article 70

HABEAS CORPUS

        7001. Application of article; special proceeding.
        7002. Petition.
                (a) By whom made.
                (b) To whom made.
                (c) Content.
        7003. When the writ shall be issued.
                (a) Generally.
                (b) Successive petitions for writ.
                (c) Penalty for violation.
        7004. Content of writ.
                (a) For whom issued.
                (b) To whom directed.
                (c) Before whom returnable.
                (d) When returnable.
                (e) Expenses; undertaking.
        7005. Service of the writ.
        7006. Obedience to the writ.
                (a) Generally; defects in form.
                (b) Compelling obedience.
                (c) Precept to bring up person detained.
        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.
                (c) Hearing to be summary.
                (d) Sickness or infirmity of person detained.
                (e) Custody during proceeding.
        7010. Determination of proceeding.
                (a) Discharge.
                (b) Bail.
                (c) Remand.
        7011. Appeal.
        7012. Redetention after discharge.

  S 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.

  S 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.

  S 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.

  S 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.

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Article 70 Continued . . .

 
  S 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.

  S 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.

  S 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.

  S 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.

  S 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 is pending in the
said family court, upon the judge who made the order. In all such
proceedings the court shall be represented by the corporation counsel of
the city of New York, or outside the city of New York, by the county
attorney; 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.

  S 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.

  S 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.

  S 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.