People ex rel. Burr v. Smith

6 A.D.3d 841, 773 N.Y.S.2d 913, 2004 N.Y. App. Div. LEXIS 3995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 2004
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Spargo, J.), entered June 23, 2003 in Ulster County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus asserting that his certificate of conviction is deficient because it failed to reasonably identify his conviction for murder. Supreme Court dismissed the petition and we affirm. Because petitioner could have raised this argument either on his direct appeal or by way of a CPL article 440 motion, habeas corpus relief is not the proper remedy (see People ex rel. Burr v Duncan, 289 AD2d 898 [2001], lv denied 97 NY2d 612 [2002]; People ex rel. Burr v McGinnis, 276 AD2d 951, 952 [2000] , lv denied 95 NY2d 770 [2000], cert denied 531 US 1199 [2001] ). In any event, even if petitioner was successful in his argument, he would not be entitled to immediate release from prison (see id.). Accordingly, habeas corpus relief is unavailable to petitioner. To the extent that petitioner maintains that he should have been afforded a hearing, we note that he was not entitled to a hearing as there are “no triable issues of fact and a summary determination [could] be made upon the pleadings” (People ex rel. Shaffer v Kuhlmann, 173 AD2d 1034, 1035 [1991], lv denied 78 NY2d 856 [1991]).

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