Opinion
528773
12-19-2019
The PEOPLE of the State of New York ex rel. Andrew Jones, Appellant, v. Jaifa COLLADO, as Superintendent of Shawangunk Correctional Facility, Respondent.
Andrew Jones, Wallkill, appellant pro se. Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Andrew Jones, Wallkill, appellant pro se.
Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Garry, P.J., Lynch, Mulvey, Aarons and Colangelo, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered October 4, 2018 in Ulster County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPL article 70, without a hearing.
Petitioner was convicted in 1999 of, among other things, criminal sale of a controlled substance in the third degree and was sentenced to a prison term of 6 to 12 years; upon appeal, his conviction was affirmed by the Second Department ( People v. James, 19 A.D.3d 615, 796 N.Y.S.2d 543 [2005], lv denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 [2005] ). Thereafter, in 2003, petitioner was convicted of murder in the second degree and was sentenced to a prison term of 23 years to life; that conviction also was affirmed by the Second Department ( People v. James, 19 A.D.3d 616, 797 N.Y.S.2d 129 [2005], lv denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 [2005] ). As a result, petitioner presently is serving an aggregate prison term of 29 years to life. In 2018, petitioner commenced this habeas corpus proceeding seeking immediate release and contending that his murder conviction was obtained in violation of the Double Jeopardy Clause. Supreme Court denied petitioner's application without a hearing, and this appeal ensued.
Petitioner is also known as Andrew James (People v. Jones, 136 A.D.3d 1153, 1153 n. 1, 26 N.Y.S.3d 363 [2016], lv dismissed 27 N.Y.3d 1000, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ).
In the interim, petitioner was convicted of assault in the second degree and was sentenced to a prison term of seven years. Upon appeal, this Court reversed the judgment of conviction and remitted the matter for further proceedings (People v. Jones, 136 A.D.3d 1153, 26 N.Y.S.3d 363 [2016], supra ). Petitioner then pleaded guilty to assault in the second degree and was sentenced to a prison term of five years – said term to run concurrently with the sentence imposed upon his murder conviction. Upon petitioner's subsequent appeal, this Court vacated the plea and remitted the matter for further proceedings, finding that petitioner was denied the effective assistance of counsel (People v. Jones, 171 A.D.3d 1249, 97 N.Y.S.3d 784 [2019], lv denied 33 N.Y.3d 1070, 105 N.Y.S.3d 8, 129 N.E.3d 328 [2019] ).
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We affirm. "It is well settled that 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" ( People ex rel. DeFreitas v. Callado, 172 A.D.3d 1811, 1811, 100 N.Y.S.3d 779 [2019] [internal quotation marks and citations omitted]; see People ex rel. Garcia v. Smith, 173 A.D.3d 1570, 1571, 101 N.Y.S.3d 664 [2019] ; People ex rel. D'Amico v. Lilley, 153 A.D.3d 1493, 1494, 59 N.Y.S.3d 910 [2017] ). Petitioner's double jeopardy claim could have been raised upon his direct appeal from the relevant judgment of conviction (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] ; People ex rel. Warren v. Artus, 17 A.D.3d 896, 896–897, 792 N.Y.S.2d 879 [2005], lv denied 5 N.Y.3d 705, 801 N.Y.S.2d 252, 834 N.E.2d 1262 [2005] ; People ex rel. Jackson v. McGinnis, 251 A.D.2d 731, 731, 672 N.Y.S.2d 826 [1998], appeal dismissed and lv. denied 92 N.Y.2d 913, 680 N.Y.S.2d 51, 702 N.E.2d 837 [1998] ) – a fact that he readily acknowledges. To the extent that petitioner argues that the failure to do so was occasioned by the ineffective assistance of appellate counsel, his remedy for this alleged omission was an application for a writ of error coram nobis (see People ex rel. DeFreitas v. Callado, 172 A.D.3d at 1812, 100 N.Y.S.3d 779 ; People ex rel. Williams v. Griffin, 114 A.D.3d 976, 976, 979 N.Y.S.2d 859 [2014] ; People ex rel. Rosado v. Napoli, 83 A.D.3d 1347, 1347–1348, 920 N.Y.S.2d 922 [2011], lv denied 17 N.Y.3d 710, 2011 WL 4356486 [2011] ) – an avenue that he has now pursued three times (and without success) in the Second Department ( People v. James, 156 A.D.3d 724, 64 N.Y.S.3d 919 [2017], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ; People v. James, 90 A.D.3d 782, 934 N.Y.S.2d 342 [2011], lv denied 18 N.Y.3d 958, 944 N.Y.S.2d 487, 967 N.E.2d 712 [2012] ; People v. James, 36 A.D.3d 630, 825 N.Y.S.2d 920 [2007], lv denied 8 N.Y.3d 986, 838 N.Y.S.2d 489, 869 N.E.2d 665 [2007] ). As we discern no basis upon which to depart from traditional orderly procedure, we find that Supreme Court properly denied petitioner's application (see 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] ; People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [2017] ).
ORDERED that the judgment is affirmed, without costs.
Garry, P.J., Lynch, Aarons and Colangelo, JJ., concur.