Opinion
534017
04-27-2023
The PEOPLE of the State of New York EX REL. Whirlee RUDOLPH, Appellant, v. Lynn J. LILLEY, as Superintendent of Eastern Correctional Facility, Respondent.
Whirlee Rudolph, Napanoch, appellant pro se. Letitia James, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Whirlee Rudolph, Napanoch, appellant pro se.
Letitia James, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Before: Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Lisa M. Fisher, J.), entered September 15, 2021 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
In 2016, petitioner was convicted of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree and received an enhanced sentence of 12 years in prison along with a lesser concurrent sentence. This Court subsequently affirmed petitioner's convictions on direct appeal as well as the denial of a CPL article 440 motion that petitioner had brought ( People v. Rudolph, 170 A.D.3d 1258, 1258, 1264, 95 N.Y.S.3d 629 [3d Dept. 2019], lv denied 34 N.Y.3d 937, 109 N.Y.S.3d 724, 133 N.E.3d 427 [2019] ). In 2020, a second CPL article 440 motion brought by petitioner was denied. Thereafter, petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus, contending that his conviction for criminal possession of a controlled substance in the third degree was jurisdictionally defective because no true bill was filed in County Court and because the five-count indictment was not filed until five days after his sentencing. Supreme Court dismissed petitioner's application without a hearing, prompting this appeal.
Even assuming, without deciding, that petitioner's challenges to his conviction and the indictment rise to the level of jurisdictional defects, case law makes clear 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, even if they are jurisdictional in nature" ( People ex rel. Thompson v. Keyser, 173 A.D.3d 1586, 1586, 101 N.Y.S.3d 670 [3d Dept. 2019] [internal quotation marks, brackets and citations omitted], lv denied 34 N.Y.3d 904, 2019 WL 6208794 [2019] ; accord People ex rel. West v. Coveny, 181 A.D.3d 1141, 1141, 118 N.Y.S.3d 455 [3d Dept. 2020] ; People ex rel. Dixon v. Superintendent of E. Corr. Facility, 181 A.D.3d 1107, 1107–1108, 118 N.Y.S.3d 450 [3d Dept. 2020] ). We agree with Supreme Court that petitioner could have raised these arguments upon his direct appeal or via a CPL article 440 motion. As the circumstances here do not reflect any basis to depart from traditional orderly procedure, we discern no reason to disturb Supreme Court's dismissal of petitioner's request for habeas corpus relief (see People ex rel. Smythe v. Miller, 182 A.D.3d 894, 894, 120 N.Y.S.3d 865 [3d Dept. 2020], appeal dismissed & lv. denied 35 N.Y.3d 1056, 129 N.Y.S.3d 35, 152 N.E.3d 815 [2020] ; People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [3d Dept. 2017] ; People ex rel. Alvarez v. West, 22 A.D.3d 996, 996, 802 N.Y.S.2d 391 [3d Dept. 2005], lv denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791 [2006] ).
Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed, without costs.