COLLINS, JUNIOR v. NYS DEPT OF CORRECTIONS

Appellate Division of the Supreme Court of New York

COLLINS, JUNIOR v. NYS DEPT OF CORRECTIONS

Appellate Division of the Supreme Court of the State of New York·Decided October 2, 2015·No. KAH 14-01643·Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

895 KAH 14-01643 PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JUNIOR COLLINS, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC., WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT.

Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), dated May 12, 2014 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus, contending that he was improperly sentenced as a persistent violent felony offender. We conclude that Supreme Court properly denied the petition. “Habeas corpus relief is unavailable where[, as here,] a claim could have been raised on direct appeal or in a CPL article 440 motion” (People ex rel. Tislon v Rock, 84 AD3d 1606, 1607, lv denied 17 NY3d 712; see Matter of Caroselli v Goord, 269 AD2d 706, 706, lv denied 95 NY2d 754). Indeed, we note that petitioner’s contention was in fact raised and rejected on a prior CPL article 440 motion.

Entered: October 2, 2015 Frances E. Cafarell Clerk of the Court

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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

895 KAH 14-01643 PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JUNIOR COLLINS, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC., WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT.

Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), dated May 12, 2014 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus, contending that he was improperly sentenced as a persistent violent felony offender. We conclude that Supreme Court properly denied the petition. “Habeas corpus relief is unavailable where[, as here,] a claim could have been raised on direct appeal or in a CPL article 440 motion” (People ex rel. Tislon v Rock, 84 AD3d 1606, 1607, lv denied 17 NY3d 712; see Matter of Caroselli v Goord, 269 AD2d 706, 706, lv denied 95 NY2d 754). Indeed, we note that petitioner’s contention was in fact raised and rejected on a prior CPL article 440 motion.

Entered: October 2, 2015 Frances E. Cafarell Clerk of the Court

COLLINS, JUNIOR v. NYS DEPT OF CORRECTIONS, (N.Y. Ct. App. 2015).

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