Article 70 Habeas Corpus Flashcards
CPLR 7001
A habeas corpus proceeding is:
(a) a civil action for damages
(b) a provisional remedy
(c) a type of hearing concerning a motion to punish
(d) a special proceeding.
Answer: (d)
CPLR 7001 provides that a habeas corpus proceeding under Article 70 is a special proceeding. A petition for a writ of habeas corpus is usually made by a person illegally imprisoned or otherwise restrained, or one acting on his behalf.
CPLR 7002
Select the correct answer(s):
A petition for a writ of Habeas Corpus may be made to:
(a) any Supreme Court justice or the Supreme Court in which the person is detained
(b) the Appellate Division in the department in which the person is detained
(c) a County Judge, only if being or residing with the county in which the person is detained
(d) a trial incarcerated individual under certain conditions to the supreme court in the county in which the charge for which the incarcerated individual is being
detained is pending.
Answer: (a), (b) and (d)
Option (c) would be correct except for the word “only.” If there is no county judge capable of issuing the writ, or a capable judge refuses, the petition may be made to a county judge being or residing within an adjoining county.
See subdivision (a) for who may petition and subdivision (b)5 for the “certain conditions” in option (d), amended eff. 8/2/21, per Ch. 322, L.2021.
CPLR 7003
A judge who in refusing to issue a writ of habeas corpus violates CPLR 7003 forfeits to the person detained:
(a) nothing
(b) two hundred and fifty dollars
(c) five hundred dollars
(d) one thousand dollars.
Answer: (d)
CPLR 7003(c) provides that a judge who in refusing to issue a writ of habeas corpus violates CPLR 7003 shall forfeit one thousand dollars to the person detained. Thus, choice (d) is correct.
CPLR 7004
In a habeas corpus proceeding the respondent is:
(a) the State Attorney-General
(b) the Governor
(c) the person detained
(d) the person having custody of the person detained.
Answer: (d)
CPLR 7004(b) provides that the writ of habeas corpus shall be directed to, and the respondent shall be, the person having custody of the person detained. Thus, choice (d) is correct.
CPLR 7005
A writ of habeas corpus may be served on:
(a) any day but Saturday or Sunday
(b) any day but a national holiday
(c) any day but Saturday, Sunday or a national holiday
(d) any day.
Answer: (d)
CPLR 7005 provides that a writ of habeas corpus may be served on any day. Thus, choice (d) is correct.
CPLR 7006
Select the best answer.
(a) A person upon whom a writ of habeas corpus 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 is too sick or infirm to make the required trip.
(b) If the person upon whom the writ of habeas corpus 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.
(c) Both (a) and (b) are correct.
(d) Neither (a) nor (b) is correct.
Answer: (c)
CPLR 7006(a) clearly indicates that choice (a) is correct. CPLR 7006(b) clearly indicates that choice (b) is correct.
CPLR 7008
Where a writ of habeas corpus requires that the return to it be filed “forthwith,” such return must be filed within ___________ after its service.
(a) forty-eight hours
(b) twenty-four hours
(c) one week
(d) five days
(e) six hours.
Answer: (b)
CPLR 7008(a) provides that “forthwith” means within twenty-four hours after service. The return to a writ of habeas corpus consists of an affidavit fully and explicitly stating whether the person detained is or has been in the custody of the person to whom the writ is directed, the authority and the cause of the detention, whether custody has been transferred to another, and the facts of and authority for any such transfer.
