Gaines v. Fischer

Nov 5, 2009
Versions:67 A.D.3d 1080
889 N.Y.S.2d 283

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered September 26, 2008 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is currently serving an aggregate term of 25 years to life in prison upon his conviction of murder in the second degree and attempted robbery in the second degree. His conviction was affirmed on appeal (People v Jackson, 173 AD2d 292 [1991], lv denied 78 NY2d 968 [1991]). He subsequently commenced the instant proceeding for a writ of habeas corpus claiming that the Department of Correctional Services was not in possession of a valid certificate of conviction pursuant to CPL 380.60 and that the underlying indictment was jurisdictionally defective because it failed to include his name in the factual allegations. Supreme Court denied the petition without a hearing. Petitioner now appeals.

We affirm. Inasmuch as petitioner’s challenges could have been raised either on direct appeal or in a CPL article 440 motion, habeas corpus relief is not the appropriate remedy (see People ex rel. Lewis v Graham, 57 AD3d 1508, 1509 [2008], lv denied 12 NY3d 705 [2009]; People ex rel. Spaulding v Napoli, 50 AD3d 1330, 1331 [2008]; People ex rel. Green v Smith, 34 AD3d 910, 911 [2006], lv denied 8 NY3d 806 [2007]). Upon reviewing the record, we find no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Howard v Rock, 61 AD3d 1230, 1231 [2009], lv denied 13 NY3d 702 [2009]). Accordingly, Supreme Court properly denied petitioner’s application.

Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.