Opinion
09-29-2017
The PEOPLE of the State of New York ex rel. Gerald SMITH, Petitioner–Appellant, v. Michelle ARTUS, Superintendent, Livingston Correctional Facility, Respondent–Respondent.
Charles J. Greenberg, Amherst, for petitioner-appellant. Gerald Smith, petitioner-appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Heather Mckay of Counsel), for respondent-respondent.
Charles J. Greenberg, Amherst, for petitioner-appellant.
Gerald Smith, petitioner-appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Heather Mckay of Counsel), for respondent-respondent.
MEMORANDUM: Petitioner commenced this proceeding seeking a writ of habeas corpus, contending that County Court had lost jurisdiction to sentence him because of its unreasonable delay in imposing sentence, and that the sentencing judge had erred in failing to recuse himself. We conclude that Supreme Court properly denied the petition. As an initial matter, petitioner's contention in his pro se supplemental brief that respondent's return should have been disregarded and his petition granted because the return failed to comply with the requirements of CPLR 7008 is improperly raised for the first time on appeal (see generally People ex rel. Peoples v. New York State Dept. of Corr. Servs., 117 A.D.3d 1486, 1487, 986 N.Y.S.2d 898, lv. denied 23 N.Y.3d 909, 2014 WL 4236225 ), and it is without merit in any event (see generally People ex rel. Caswell v. New York State Div. of Parole, 11 A.D.3d 1008, 1008–1009, 782 N.Y.S.2d 230, lv. denied 4 N.Y.3d 701, 790 N.Y.S.2d 647, 824 N.E.2d 48 ). With respect to the merits of the petition, habeas corpus relief is unavailable because petitioner's contentions "can be raised on his pending direct appeal from the judgment of conviction or by way of a CPL article 440 motion" ( People ex rel. Thomas v. Dray, 197 A.D.2d 853, 853, 604 N.Y.S.2d 865, lv. denied 82 N.Y.2d 663, 610 N.Y.S.2d 150, 632 N.E.2d 460, rearg. denied 83 N.Y.2d 847, 612 N.Y.S.2d 110, 634 N.E.2d 606 ; see People ex rel. Martinez v. Graham, 98 A.D.3d 1312, 1312, 951 N.Y.S.2d 423, lv. denied 20 N.Y.3d 853, 2012 WL 5950389 ; People ex rel. Lanfair v. Corcoran, 60 A.D.3d 1351, 1351, 876 N.Y.S.2d 257, lv. denied 12 N.Y.3d 714, 2009 WL 1773138 ). Moreover, petitioner's recusal contention would not entitle him to immediate release even if it had merit (see generally People v. Warren, 100 A.D.3d 1399, 1401, 954 N.Y.S.2d 289 ), and it therefore is unavailable as a basis for habeas corpus relief for that reason as well (see People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 903, 431 N.Y.S.2d 518, 409 N.E.2d 990 ; People ex rel. Cole v. Graham, 147 A.D.3d 1350, 1351, 47 N.Y.S.3d 178, lv. denied 29 N.Y.3d 914, 2017 WL 2743288 ). We have reviewed petitioner's remaining contentions in his pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, CENTRA, PERADOTTO, and CARNI, JJ., concur.