18 A.D.3d 1048
N.Y. App. Div.
2005

The People of the State of New York ex rel. Victor Woodard, Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent.

Appellate Division of the Supreme Court of New York, Third Department

May 5, 2005

795 NYS2d 381

Feldstein, J.

The People of the State of New York ex rel. Victor Woodard, Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent. [795 NYS2d 381]—Appeal from a judgment of the Supreme Court (Feldstein, J.), entered August 9, 2004 in Clinton County, which denied petitioner‘s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1993, petitioner was convicted of burglary in the first degree and robbery in the first degree and was sentenced to concurrent prison terms of 25 years to life. Thereafter, the judgment of conviction was affirmed on appeal (People v Woodard, 221 AD2d 493 [1995], lv denied 88 NY2d 888 [1996]), and petitioner‘s two motions pursuant to CPL article 440 and a writ of habeas corpus were denied. Petitioner then commenced this CPLR article 70 proceeding for a writ of habeas corpus contending that the trial court did not have subject matter jurisdiction because the indictment was based solely on the hearsay latent print examination report. Supreme Court denied the petition and this appeal ensued.

We affirm. Because petitioner‘s claim could have been raised on direct appeal and was, in fact, raised in his second CPL article 440 motion, habeas corpus relief is unavailable (see People ex rel. Walsh v Sabourin, 305 AD2d 759 [2003]; People ex rel. Barnett v Senkowski, 294 AD2d 686 [2002]). Finding nothing in this matter to warrant a departure from traditional orderly procedures, the application for a writ of habeas corpus was properly denied (see People ex rel. Walsh v Sabourin, supra).

Crew III, J.P., Peters, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.