Opinion
522065
05-31-2018
The PEOPLE of the State of New York EX REL. Cerious–Delmarr MCCRAY, Appellant, v. Darwin LACLAIR, as Superintendent of Franklin Correctional Facility, Respondent.
Cerious–Delmarr McCray, Wallkill, appellant pro se.
Cerious–Delmarr McCray, Wallkill, appellant pro se.
Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Lynch, J.
Appeals (1) from a judgment of the Supreme Court (Feldstein, J.), entered September 22, 2015 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing, and (2) from two orders of said court, entered October 4, 2016 and May 1, 2017 in Franklin County, which denied petitioner's motions for reconsideration and/or renewal.
Petitioner is currently serving a prison term of 10 years following his 2011 conviction of two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree ( People v. McCray, 106 A.D.3d 1110, 1111–1112, 965 N.Y.S.2d 615 [2013], lv denied 21 N.Y.3d 1044, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013] ). In 2015, petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus asserting, among other things, a litany of investigative, prosecutorial, defense counsel and judicial misconduct claims and that he was the subject of an overarching conspiracy to deprive him of his constitutional rights. Supreme Court denied petitioner's application without a hearing and subsequently denied two motions for reconsideration and/or renewal. Petitioner now appeals from the judgment and orders.
With respect to petitioner's initial application, "[h]abeas corpus is not the appropriate remedy for raising claims that could have been raised on direct appeal or in the context of a CPL article 440 motion" ( People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [2017] [internal quotation marks and citation omitted]; see People ex rel. Latta v. Martuscello, 140 A.D.3d 1421, 1421, 32 N.Y.S.3d 517 [2016], lv denied 28 N.Y.3d 904, 2016 WL 6111806 [2016] ). We agree with Supreme Court that petitioner's contentions could have been raised on his direct appeal and, to the extent that such matters involve facts outside of the record, petitioner acknowledges that he has not moved for any relief pursuant to CPL article 440 (see People ex rel. Brown v. People, 295 A.D.2d 834, 835, 743 N.Y.S.2d 895 [2002], lv denied 98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186 [2002], cert denied 537 U.S. 1175, 123 S.Ct. 1001, 154 L.Ed.2d 920 [2003] ; see also People ex rel. Landy v. Rock, 61 A.D.3d 1198, 1198, 875 N.Y.S.2d 923 [2009], lv denied 13 N.Y.3d 702, 2009 WL 2762581 [2009] ; People ex rel. Washington v. Walsh, 43 A.D.3d 1217, 1217, 841 N.Y.S.2d 713 [2007], lv denied 9 N.Y.3d 816, 849 N.Y.S.2d 33, 879 N.E.2d 173 [2007] ). As we perceive no basis to depart from traditional orderly procedure (see People ex rel. Brown v. People, 295 A.D.2d at 835, 743 N.Y.S.2d 895 ), we conclude that Supreme Court properly denied petitioner's application.
As to petitioner's appeals from Supreme Court's orders denying reconsideration and/or renewal, both motions must be considered ones to reargue inasmuch as they were not based upon newly discovered evidence (see People ex rel. Kearney v. Bartlett, 131 A.D.3d 1313, 1314, 16 N.Y.S.3d 357 [2015] ; Matter of Syblis v. New York State Bd. of Parole, 240 A.D.2d 821, 821, 659 N.Y.S.2d 809 [1997] ). Specifically with regard to the second motion, defendant failed to point to any new facts or change in the law that would require a different determination; rather, he requested once again that Supreme Court revisit his initial arguments (see CPLR 2221[e] ; People ex rel. Adams v. Cunningham, 134 A.D.3d 1258, 1259, 19 N.Y.S.3d 915 [2015] ; Matter of Jones v. Hickey, 126 A.D.3d 1247, 1248, 3 N.Y.S.3d 656 [2015], lv dismissed 26 N.Y.3d 950, 17 N.Y.S.3d 67, 38 N.E.3d 811 [2015] ). As no appeal lies from an order denying reargument, these appeals must be dismissed (see People ex rel. Kearney v. Bartlett, 131 A.D.3d at 1314, 16 N.Y.S.3d 357 ; Matter of Hill v. Goord, 275 A.D.2d 492, 493, 712 N.Y.S.2d 656 [2000] ).
ORDERED that the judgment is affirmed, without costs.
ORDERED that the appeals from the orders entered October 4, 2016 and May 1, 2017 are dismissed, without costs.
Garry, P.J., Egan Jr., Mulvey and Rumsey, JJ., concur.