N.Y. Civil Practice Law and Rules 7002 – Petition
§ 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.
Terms Used In N.Y. Civil Practice Law and Rules 7002
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Habeas corpus: A writ that is usually used to bring a prisoner before the court to determine the legality of his imprisonment. It may also be used to bring a person in custody before the court to give testimony, or to be prosecuted.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Writ: A formal written command, issued from the court, requiring the performance of a specific act.
(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 incarcerated individual in a city detention institution shall petition for a writ to the supreme court in the county in which the charge for which the incarcerated individual is being detained is pending. Such incarcerated individual 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 incarcerated individual 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.