HARRINGTON, DAVID P. v. CULLY, MALCOLM R.

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2013
• Docket: KAH 11-02184
• Status: Published

Opinion

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

40 KAH 11-02184 PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DAVID P. HARRINGTON, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

MALCOLM R. CULLY, SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Christopher J. Burns, J.), entered September 16, 2011 in a habeas corpus proceeding. The judgment dismissed the petition.

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

Memorandum: Petitioner appeals from a judgment dismissing his petition seeking a writ of habeas corpus on the ground that he was denied effective assistance of counsel in connection with his plea of guilty. We affirm. It is well established that a petition for habeas corpus relief is not a proper vehicle for raising a contention of ineffective assistance of counsel (see People ex rel. Hinton v Graham, 66 AD3d 1402, 1402, lv denied 13 NY3d 934, rearg denied 14 NY3d 795). Even assuming, arguendo, that petitioner’s contention had merit, we would conclude that petitioner is not entitled to the relief sought, i.e., immediate release (see id.; People ex rel. Smith v Burge, 11 AD3d 907, 908, lv denied 4 NY3d 701; see generally People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648, 649).

Entered: February 1, 2013 Frances E. Cafarell Clerk of the Court