Opinion
527993
03-16-2020
The PEOPLE of the State of New York EX REL. John DIXON, Appellant, v. SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, Respondent.
John Dixon, Napanoch, appellant pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
John Dixon, Napanoch, appellant pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Mott, J.), entered September 25, 2018 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is currently serving a prison sentence of 20 years following his 2012 conviction of, among other things, rape in the first degree. That conviction was affirmed upon appeal ( People v. Dixon, 138 A.D.3d 1016, 29 N.Y.S.3d 554 [2016], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 1437, 197 L.Ed.2d 651 [2017] ). Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging that the trial court lacked jurisdiction because, among other things, there were infirmities in the grand jury proceeding, the prosecutor, among others, engaged in misconduct, trial and appellate counsel were ineffective and the evidence did not support the conviction. Supreme Court dismissed the petition without a hearing, and this appeal ensued.
We affirm. "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. Moise v. Coveny, 175 A.D.3d 1693, 1693–1694, 106 N.Y.S.3d 643 [2019] [internal quotation marks and citations omitted]; accord People ex rel. Hill v. Miller, 175 A.D.3d 790, 790, 103 N.Y.S.3d 863 [2019], lv denied 34 N.Y.3d 907, 115 N.Y.S.3d 775, 139 N.E.3d 397 [2019] ). With the exception of petitioner's assertion that he received ineffective appellate counsel, his contentions could have been raised — and in some instances were raised — on his direct appeal or in a motion pursuant to CPL article 440 (see People ex rel. Moise v. Coveny, 175 A.D.3d at 1694, 106 N.Y.S.3d 643 ; 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] ). To the extent that petitioner alleges ineffective assistance of appellate counsel, such claim should be pursued in an application for a writ of error coram nobis (see People ex rel. Jones v. Collado, 178 A.D.3d 1265, 1266, 112 N.Y.S.3d 599 [2019] ; People ex rel. DeFreitas v. Callado, 172 A.D.3d 1811, 1812, 100 N.Y.S.3d 779 [2019], lv denied 34 N.Y.3d 909, 119 N.Y.S.3d 64, 141 N.E.3d 949, 2020 WL 728529 [Feb. 13, 2020] ) — an avenue he has previously pursued unsuccessfully ( People v. Dixon, 158 A.D.3d 639, 67 N.Y.S.3d 861 [2018], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ). Notwithstanding petitioner's assertion to the contrary, we find no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [2017] ). As such, we find that Supreme Court properly dismissed petitioner's application (see People ex rel. Chaney v. Dagostino, 140 A.D.3d 1481, 1481, 33 N.Y.S.3d 770 [2016] ). Petitioner's remaining contentions are without merit.
Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed, without costs.