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cplr - future clerk 2023: the clerkening > CPLR art 70 > Flashcards

CPLR art 70 Flashcards

1
Q

7001- Application of Article

The provisions of this article are applicable to common law or statutory writs of ______________ and common law writs of _________ to inquire into detention.

A

habeas corpus ………… certiorari

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2
Q

7001- Application of Article

A proceeding under this article is a ___________ and therefore the parties involved are considered the petitioner and respondent

A

special proceeding

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3
Q

7002- Petition

It is brought on by a petition (ON NOTICE/WITHOUT NOTICE) for a writ of habeas corpus, and may be made by:

  1. A person illegally_________________ or __________ in his liberty within the state or a person acting on his behalf
  2. A party in a ______________ proceeding subsequent to the order of the family court to inquire into the cause of such detention and for deliverance
  3. A judge authorized to issue writs of habeas corpus having evidence in ________________ that a person is so detained, shall on his own initiative issue a writ of habeas corpus for the relief of that person
A

without notice ……… imprisoned or restrained …. child abuse ………… a proceeding before him

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4
Q

7002- Petition

A petition for a writ may be made to:

  1. The Supreme Court in the __________ in which the person is detained
  2. The Appellate division in the __________ in which the person is detained
  3. Any justice of the_______
  4. A ________ being or residing in the ________ where the person is detained or where there is no judge in that county or those there have refused,the petition may be made to a County judge in _____________
    5.In a city having a population of ________ or more inhabitants,a person held as a trial incarcerated individual shall petition for a writ to the _____________in the ____________ in which the charges against him are pending or the ___________ in the _______________ in which he is detained or any justice of the ______________ provided the writ will be made returnable before a justice of the Supreme court in a _______________ where the action is pending
A

judicial district ……..department…….. Supreme Court….. County judge ….. county……… an adjoining county…….. one million…… Supreme court …. county ……. appellate division….. department ……. Supreme court…… county

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5
Q

7002- Petition

Such petition shall be ___________ and be accompanied by an affidavit stating, among other things:

  • the _________ of the person detained,
  • where they are ___________
  • __________ they are detained,
  • that the detention is ____________
  • whether an __________ has been taken or
  • if there are any _____________ for writs, etc.
A

verified………. Name … why ……… illegal,…….. appeal ………. previous applications

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6
Q

7003- When the Writ Shall be Issued

  • The petition for a writ may be denied where the person is not ___________ or a court or judge of the United States has ________________ to have him released
  • It may be also denied if the legality of detention has been ____________ in a prior proceeding for a writ
A

illegally detained…….. exclusive jurisdiction …… previously determined

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7
Q

7003- When the Writ Shall be Issued

judge or court who refuses to issue a writ in violation of this article forfeits to the person detained ______________

A

ONE THOUSAND DOLLARS

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8
Q

7004- Content of Writ

The writ shall be issued on behalf of ___________ and directed to the person ________________ of the person detained

A

the state ……… having custody

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9
Q

7004- Content of Writ

A writ to secure the discharge of a person from a state institution shall be made returnable before a justice of the __________ Court or a ___________ judge being or residing within the ______________ in which the person is detained

A

Supreme…..county court …. county

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10
Q

7004- Content of Writ

The writ may be made returnable __________ or on any day or time certain as the case requires

A

FORTHWITH

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11
Q

7004- Content of Writ

  • The court may require the petitioner to make an __________ to the person having custody for the delivery or possible return of the person.
  • ________ of the writ shall not be complete until such charge is paid or tendered and such undertaking is delivered
A

Undertaking …… Service

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12
Q

7005- Service of the Writ

**A writ of habeas corpus may be served **_____________ ** or any other day that service for other proceedings would normally not be valid.

A

ON ANY DAY.

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13
Q

7005- Service of the Writ

  • Service shall be made by delivering the ___________ and a copy of ___________ to the person to whom it is directed.
  • If such person cannot be found with due diligence the writ may be served by leaving it with any person who has custody of the person detained.
A

Writ ………the petition,

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14
Q

7005- Service of the Writ

  • If the person to whom it is directed__________ himself or refuses admittance it may be affixed in a conspicuous place on the outside of the dwelling or where the person is detained AND mailing a copy to such place.
  • The court can dispense with __________ or direct another manner of service
A

Conceals …… mailing

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15
Q

7005- Service of the Writ

If the person detained is in the custody of a person other than the one to whom the writ_________ , 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.

A

is directed

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16
Q

7006- Obedience to the Writ

A person upon whom the writ is directed shall obey the writ unless the person in their custody is __________ to make the required trip

A

too sick

17
Q

7006- Obedience to the Writ

If a person to whom it is directed refuses or neglects to obey the writ without cause, the court shall forthwith issue a ____________ against him directed to a sheriff in the county where such person may be found

  • Where such person is a __________ the warrant shall be directed to a person specifically designated to execute it.
  • Such person taken into custody may be a non-compliant sheriff to whom the writ is directed, in such case he is to be held in custody in a jail ____________________
A

warrant of attachment …….. sheriff,……….. other than his own

18
Q

7006- Obedience to the Writ

A writ shall not be disobeyed for a __________ , as long as the ___________ of the person detained is ascertainable

A

defect in form…… identity

19
Q

7007- Warrant Preceding or Accompanying Writ

  • Where it appears the person wrongfully detained may be __________ from the state or suffer irreparable _________ before relief from a habeas corpus proceeding can occur, the court shall issue a _____________ directing the immediate delivery of the person detained before the court
  • A writ of habeas corpus directed to the person having ____________ of the person detained shall also be issued.
  • Where it appears that the detention constitutes a ____________ 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.
A

Removed …. injury ……… warrant of attachment ……. custody …… criminal offense,

20
Q

7008- Return

The “RETURN” shall consist of an affidavit to be served in the same manner as an ___________in a special proceeding and filed at the time and place directed in the writ, or if the writ is returnable forthwith, within ____________ after its service

A

answer ………. TWENTY FOUR (24) hours

21
Q

7009- Hearing

Where the detention is by virtue of a mandate, the court shall not adjudicate the issues until written notice of the time and place of a hearing is served either personally__________ prior to the hearing or as the court directs, upon:

  1. Where the mandate was issued in a________________ , upon the person interested in continuing the detention, or upon his attorney
  2. When the person detained is by order of the _______________, service shall be upon the judge who made the order. In all such proceedings the court shall be represented by the __________________.
  3. In any other case, upon the___________ 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 ______________
A

EIGHT (8) DAYS… civil cause….. family court……….. attorney general……. district attorney……. committed.

22
Q

7009- Hearing

The court shall proceed in a ________________ at the hearing.

A

summary manner

23
Q

7009- Hearing

(Bard) If the person detained is too sick or infirm to attend the hearing, the hearing can be held _________ , adjourned, or held at the place where they are ____________

A

without them……………. detained.

24
Q

7009- Hearing

Pending final disposition, the court may place the person detained in custody or parole him or admit him ________ as justice requires.

A

to bail

25
Q

7010- Determination of Proceeding

If it is found a person is illegally detained they shall be __________

A

discharged forthwith.

26
Q

7010- Determination of Proceeding

  • If it is found that bail was set on them in an excessive amount, it will be__________
  • If no bail was allowed and should have been, then _____________ will be set
A

Reduced….reasonable bail

27
Q

7010- Determination of Proceeding

If however the person is not ordered discharged or allowed bail then the petition under this section will be ________ and the person will be remanded back to detention from which he came

A

dismissed

28
Q

7011- Appeal

An _________ may be taken from a judgment refusing to grant a writ under this section.

A

appeal

29
Q

7011- Appeal

The _________ may appeal in the name of the state in any case where the _____________ attorney might do so

A

attorney general …….. district

30
Q

7011- Appeal

Where an appeal is taken by the state from a judgment admitting a person to bail, his release shall not be ___________

A

stayed

31
Q

7012 - Re-detention after Discharge+

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

A

same cause

cplr - future clerk 2023: the clerkening (58 decks)

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