Proceeding pursuant to CPLR article 70 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 7002 [b] [2]) seeking a writ of habeas corpus.
It is hereby ordered that said petition be and the same hereby is unanimously denied without costs.
Memorandum: Petitioner, an inmate at Attica Correctional Facility, commenced this original proceeding pursuant to CPLR 7002 (b) (2) seeking a writ of habeas corpus on the ground that, pursuant to the decision of the Court of Appeals in People v Suarez (6 NY3d 202 [2005]), the evidence presented at his trial in 1998 no longer supports his conviction of depraved indifference murder. Because the petition raises issues that could have been and were raised on petitioner’s direct appeal and by a CPL 440.10 motion, habeas corpus relief is unavailable (see People ex rel. Woods v Walker, 283 AD2d 991, 991-992 [2001], appeal dismissed and lv denied 96 NY2d 928 [2001]; People ex rel. Caroselli v Goord, 268 AD2d 827 [2000], lv denied 94 NY2d 765 [2000]). Present — Hurlbutt, J.P., Scudder, Gorski and Green, JJ.