Opinion
12-23-2016
The PEOPLE of the State of New York ex rel. Deandre WILLIAMS, also known as David Williams, Petitioner–Appellant, v. Michael SHEAHAN, Superintendent, Five Points Correctional Facility, Respondent–Respondent.
Charles J. Greenberg, Amherst, for Petitioner–Appellant.
Charles J. Greenberg, Amherst, for Petitioner–Appellant.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Petitioner commenced this proceeding seeking a writ of habeas corpus on the grounds that the evidence is legally insufficient to support his conviction of assault in the second degree (Penal Law § 120. 05[2] ), he is actually innocent, and certain errors were made at trial. We conclude that Supreme Court properly denied his petition. "Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion" (People ex rel. Dilbert v. Bradt, 117 A.D.3d 1498, 1498, 984 N.Y.S.2d 902, lv. denied 24 N.Y.3d 902, 2014 WL 4356170 [internal quotation marks omitted]; see People ex rel. Collins v. New York State Dept. of Corr. & Community Supervision, 132 A.D.3d 1234, 1235, 17 N.Y.S.3d 347, lv. denied 26 N.Y.3d 917, 2016 WL 530900 ). Although petitioner contends that he could not raise those grounds on his direct appeal because he was denied effective assistance of appellate counsel, we note that this proceeding for a writ of habeas corpus is not appropriate for raising that contention because his remedy for ineffective assistance of appellate counsel would be a new appeal, not immediate release from custody (see People ex rel. Rivera v. Smith, 244 A.D.2d 944, 944, 665 N.Y.S.2d 184, lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130 ). Rather, that contention is properly the subject of a motion for a writ of error coram nobis (see id. ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.