Opinion
1454 KAH 18–00046
12-21-2018
The PEOPLE of the State of New York EX REL. Vincent TORRES, Petitioner–Appellant, v. Harold T. GRAHAM, Superintendent, Auburn Correctional Facility, Respondent–Respondent.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER–APPELLANT. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT–RESPONDENT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER–APPELLANT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered June 13, 2017 in a habeas corpus proceeding. The judgment, among other things, dismissed the petition.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from a judgment that, among other things, dismissed his habeas corpus petition. He contends that Supreme Court erred in denying him habeas corpus relief without an evidentiary hearing because he made a meritorious initial showing that he was arrested pursuant to an improper "John Doe" warrant that was not subsequently amended to include his name or a description of him. We reject that contention. Insofar as petitioner directs us to testimony in the record of his direct appeal ( People v. Torres, 129 A.D.3d 1535, 10 N.Y.S.3d 771 [4th Dept. 2015] ), or information discovered through a Freedom of Information Law request, habeas corpus relief is not appropriate because he could have raised his contention on direct appeal or in a CPL article 440 motion (see People ex rel. Frederick v. Superintendent, Auburn Corr. Facility, 156 A.D.3d 1468, 1468, 65 N.Y.S.3d 877 [4th Dept. 2017], lv denied 31 N.Y.3d 908, 2018 WL 2727903 [2018] ; People ex rel. Haddock v. Dolce, 149 A.D.3d 1593, 1593, 51 N.Y.S.3d 470 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3878099 [2017] ; see generally People v. Rossborough, 122 A.D.3d 1244, 1245, 996 N.Y.S.2d 407 [4th Dept. 2014] ). We have considered petitioner's remaining arguments and conclude that they do not warrant modification or reversal of the judgment.