Opinion
528369
09-19-2019
The PEOPLE of the State of New York EX REL. Eddie MOISE, Appellant, v. Raymond COVENY, as Superintendent of Elmira Correctional Facility, Respondent.
Eddie Moise, Elmira, appellant pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Eddie Moise, Elmira, appellant pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Rich Jr., J.), entered December 28, 2018 in Chemung County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner, who is currently serving a lengthy prison term, commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging that the trial court lacked jurisdiction because the evidence before the grand jury was legally insufficient, the prosecutor engaged in misconduct by offering false evidence and the indictment was procedurally and technically defective. Supreme Court denied the petition without a hearing, and this appeal ensued.
We affirm. "Habeas 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, even if they are jurisdictional in nature" ( People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [2017] [internal quotation marks and citations omitted]; accord People ex rel. McCray v. LaClair, 161 A.D.3d 1490, 1491, 77 N.Y.S.3d 768 [2018], lv dismissed and denied 32 N.Y.3d 1143, 92 N.Y.S.3d 181, 116 N.E.3d 665 [2019] ). A review of petitioner's contentions establish that they could have been raised on his direct appeal or in a motion pursuant to CPL article 440 (see People ex rel. Rivas v. Walsh, 40 A.D.3d 1327, 1328, 837 N.Y.S.2d 749 [2007], lv denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007] ; People ex rel. Rodriguez v. Kuhlmann, 239 A.D.2d 721, 721, 657 N.Y.S.2d 1021 [1997], lv denied 90 N.Y.2d 808, 664 N.Y.S.2d 269, 686 N.E.2d 1364 [1997] ; People ex rel. Brown v. Hanslmaier, 209 A.D.2d 801, 802, 618 N.Y.S.2d 597 [1994], lv denied 85 N.Y.2d 804, 626 N.Y.S.2d 755, 650 N.E.2d 414 [1995] ). Notwithstanding petitioner's assertion, we find no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Weay v. Martuscello, 155 A.D.3d 1204, 1205, 63 N.Y.S.3d 277 [2017], lv denied 31 N.Y.3d 901, 2018 WL 1415333 [2018] ; People ex rel. Littlejohn v. Griffin, 133 A.D.3d 996, 997, 18 N.Y.S.3d 888 [2015], lv denied 27 N.Y.3d 902, 2016 WL 1203260 [2016] ). As habeas corpus relief is unavailable, Supreme Court properly denied petitioner's application.
Garry, P.J., Egan Jr., Clark, Mulvey and Aarons, JJ., concur.
ORDERED that the judgment is affirmed, without costs.