Opinion
1082 KAH 19-01293
11-20-2020
The PEOPLE of the State of New York EX REL. Richard B. LYON, Petitioner-Appellant, v. Matthew THOMS, Superintendent, Five Points Correctional Facility and Anthony J. Annucci, Commissioner, New York State Department of Corrections and Community Supervision, Respondents-Respondents.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus, claiming that he was denied effective assistance of counsel on his direct appeal due to appellate counsel's conflict of interest. He now appeals from a judgment that, inter alia, denied the petition. We affirm. Regardless of petitioner's contention that he could not have raised that claim on his direct appeal precisely because he was denied effective assistance of appellate counsel, a proceeding for a writ of habeas corpus is not the appropriate proceeding in which to raise such a claim inasmuch as the remedy for ineffective assistance of appellate counsel is a new appeal, not immediate release from custody (see People ex rel. Smith v. Burge , 11 A.D.3d 907, 908, 784 N.Y.S.2d 746 [4th Dept. 2004], lv denied 4 N.Y.3d 701, 790 N.Y.S.2d 647, 824 N.E.2d 48 [2004] ; People ex rel. Rivera v. Smith , 244 A.D.2d 944, 944, 665 N.Y.S.2d 184 [4th Dept. 1997], lv denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130 [1998] ). Petitioner's claim is properly the subject of a motion for a writ of error coram nobis (see People ex rel. Williams v. Sheahan , 145 A.D.3d 1517, 1518, 44 N.Y.S.3d 654 [4th Dept. 2016], lv denied 29 N.Y.3d 908, 2017 WL 1843135 [2017] ; People ex rel. Williams v. Griffin , 114 A.D.3d 976, 976, 979 N.Y.S.2d 859 [3d Dept. 2014] ).