People ex rel. Burr v. Duncan

289 A.D.2d 898, 734 N.Y.S.2d 910, 2001 N.Y. App. Div. LEXIS 12546

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2001
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered March 28, 2001 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this proceeding for a writ of habeas corpus asserting that he is unlawfully detained because his certificate of conviction is deficient. We agree with Supreme Court’s determination that, inasmuch as petitioner could have advanced this argument either on his direct appeal or by way of a motion pursuant to CPL article 440 in the court of original jurisdiction, habeas corpus is not the proper remedy (see, Matter of Lebron v Herbert, 287 AD2d 917; People ex rel. Patterson v Lacy, 276 AD2d 961). Moreover, even if petitioner were successful in his argument, he would not be entitled to immediate release from prison (see, Matter of Lebron v Herbert, supra). Accordingly, habeas corpus relief is unavailable to petitioner.

Mercure, J. P., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.