Opinion
532432
07-15-2021
The PEOPLE of the State of New York EX REL. Edward BROWN, Appellant, v. Jeffrey TEDFORD, as Superintendent of Adirondack Correctional Facility, Respondent.
Edward Brown, Ray Brook, appellant pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Edward Brown, Ray Brook, appellant pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Aarons and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Meyer, J.), entered October 23, 2020 in Essex County, which, in a proceeding pursuant to CPLR article 70, granted respondent's motion to dismiss the petition.
Petitioner is an inmate in the custody of the Department of Corrections and Community Supervision serving a sentence of 22 years to life stemming from his 2003 convictions of burglary in the first degree, criminal possession of a weapon in the third degree, criminal possession of stolen property in the fifth degree and resisting arrest, which judgment was affirmed upon appeal ( People v. Brown, 16 A.D.3d 430, 790 N.Y.S.2d 411 [2005], lv denied 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 [2005] ). In 2020, petitioner filed an application for a writ of habeas corpus, asserting that his detention is illegal because the criminal convictions were based upon an allegedly invalid waiver of his immunity before the grand jury. Supreme Court granted respondent's subsequent motion to dismiss the petition.
We affirm. "Habeas corpus relief is unavailable where, as here, petitioner's claims were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature" ( People ex rel. Johnson v. Uhler, 191 A.D.3d 1065, 1066, 141 N.Y.S.3d 544 [2021] [internal quotation marks, brackets and citations omitted], lv denied 37 N.Y.3d 902, 2021 WL 2151839 [2021] ; see People ex rel. Lasher v. Tynon, 188 A.D.3d 1516, 1516, 132 N.Y.S.3d 897 [2020], lv denied 36 N.Y.3d 908, 2021 WL 1134403 [2021] ; People ex rel. Smythe v. Miller, 182 A.D.3d 894, 894, 120 N.Y.S.3d 865 [2020], appeal dismissed, lv. denied 35 N.Y.3d 1056, 129 N.Y.S.3d 35, 152 N.E.3d 815 [2020] ). Defendant admitted raising the same challenge regarding the validity of the waiver of his rights before the grand jury on direct appeal, in a CPL 440.10 motion and prior state and federal habeas corpus proceedings. As the record does not disclose "any extraordinary circumstances warranting a departure from traditional orderly procedure" ( People ex rel. Wright v. Coveny, 188 A.D.3d 1345, 1346, 131 N.Y.S.3d 919 [2020] [internal quotation marks and citation omitted]; see People ex rel. Dixon v. Superintendent of E. Corr. Facility, 181 A.D.3d 1107, 1108, 118 N.Y.S.3d 450 [2020] ), we find no basis to disturb the dismissal of petitioner's request for habeas corpus relief (see People ex rel. Johnson v. Uhler, 191 A.D.3d at 1067, 141 N.Y.S.3d 544 ; People ex rel. Golston v. Kirkpatrick, 153 A.D.3d 1498, 1498–1499, 59 N.Y.S.3d 912 [2017], appeal dismissed 30 N.Y.3d 1031, 69 N.Y.S.3d 202, 91 N.E.3d 1181 [2017], lv denied 31 N.Y.3d 903, 2018 WL 1527970 [2018] ). Petitioner's remaining contentions are without merit.
Garry, P.J., Egan Jr., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed, without costs.