Opinion
2014-05-2
The PEOPLE of the State of New York ex rel. Dwight M. DILBERT, Petitioner–Appellant, v. Mark BRADT, Superintendent, Attica Correctional Facility, Respondent–Respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered January 2, 2013 in a habeas corpus proceeding. The judgment denied the petition.
Alan Birnholz, East Amherst, for Petitioner–Appellant.
MEMORANDUM:
Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that the evidence adduced at trial was legally insufficient to support the conviction of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference] ) inasmuch as the evidence established that his acts against the victim were intentional and manifested an intent to kill. We conclude that Supreme Court properly denied the 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. Martinez v. Graham, 98 A.D.3d 1312, 1312, 951 N.Y.S.2d 423,lv. denied20 N.Y.3d 853, 2012 WL 5950389;see People ex rel. Smith v. Graham, 109 A.D.3d 1113, 1113, 971 N.Y.S.2d 708; People ex rel. Lewis v. Graham, 96 A.D.3d 1423, 1423, 945 N.Y.S.2d 903,lv. denied19 N.Y.3d 813, 2012 WL 4936632).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, and VALENTINO, JJ., concur.