Opinion
KAH 02-00437
October 2, 2003.
Appeal from a judgment (denominated order) of Supreme Court, Oneida County (Parker, J.), entered September 4, 2001, which dismissed the petition for a writ of habeas corpus.
DAVID M. GIGLIO, UTICA, FOR PETITIONER-APPELLANT.
RICHARD GLOSS, PETITIONER-APPELLANT PRO SE.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly dismissed the petition for a writ of habeas corpus because the issues raised therein either were raised or could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 ( see People ex rel. Mammarello v Donnelly, 286 A.D.2d 937; People ex rel. Woods v. Walker, 283 A.D.2d 991, 991-992, appeal dismissed and lv denied 96 N.Y.2d 928). Moreover, the court properly dismissed the petition because habeas corpus relief does not lie where petitioner would not be entitled to immediate release even if his contentions had merit ( see People ex rel. Beam Hodges, 286 A.D.2d 936, 937; Mammarello, 286 A.D.2d at 937; People ex rel. Santoro v. Hollins, 273 A.D.2d 829). Because "the petition `lacked any justiciable basis upon which a writ of habeas corpus could be sustained,'" the court did not abuse its discretion in denying petitioner's application for assigned counsel ( People ex rel. Brown v Murray, 284 A.D.2d 987, 988, quoting People ex rel. Washington v. La Vallee, 34 A.D.2d 603, 603, lv denied 27 N.Y.2d 481).