People ex rel. Cicio v. Rock

Appellate Division of the Supreme Court of New York

People ex rel. Cicio v. Rock

85 A.D.3d 1468, 926 N.Y.S.2d 685

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 23, 2011

StatusPublished

Cited by2 cases

This text of 85 A.D.3d 1468 (People ex rel. Cicio v. Rock) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Cicio v. Rock, 85 A.D.3d 1468, 926 N.Y.S.2d 685 (N.Y. Ct. App. 2011).

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Opinion

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 30, 2010 in Franklin County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2003, petitioner was convicted of three counts of robbery in the second degree and was sentenced to consecutive terms of 3 Vs years in prison, to be followed by three years of postrelease supervision. Thereafter, he made motions pursuant to CPL article 440 to vacate the judgment of conviction and/or set aside the sentence and these motions were denied. He made a third [1469]*1469CPL article 440 motion and, while it was pending, brought this proceeding pursuant to CPLR article 70 for a writ of habeas corpus. Supreme Court denied the petition without a hearing. This appeal ensued.

Petitioner’s primary contentions are that he was denied the effective assistance of counsel and the plea agreement was invalid because it included a robbery charge that had been dismissed. Petitioner, however, raised these very claims in his prior CPL article 440 motions. Inasmuch as a habeas corpus proceeding is not the proper vehicle for raising arguments that could have been or were raised on direct appeal or in a postconviction motion (see People ex rel. Dixon v Rock, 79 AD3d 1518, 1518 [2010], lv denied 16 NY3d 709 [2011]; People ex rel. Cisson v Artus, 78 AD3d 1392, 1392-1393 [2010]), this CPLR article 70 proceeding is not the proper context within which to raise them. Petitioner further asserts that he is entitled to habeas corpus relief due to the sentencing court’s delay in deciding his third CPL article 440 motion. We find this argument unpersuasive insofar as petitioner could have and did, in fact, raise some of the same claims in his prior CPL article 440 motions and, in any event, he would not be entitled to immediate release if the claims had merit (see People ex rel. Hall v Brown, 74 AD3d 1596 [2010], lv denied 15 NY3d 710 [2010]; People ex rel. Hall v Rock, 71 AD3d 1303, 1304 [2010], appeal dismissed 14 NY3d 882 [2010], lv denied 15 NY3d 703 [2010]). In view of the foregoing, Supreme Court properly denied the petition.

Mercure, J.P., Spain, Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 30, 2010 in Franklin County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2003, petitioner was convicted of three counts of robbery in the second degree and was sentenced to consecutive terms of 3 Vs years in prison, to be followed by three years of postrelease supervision. Thereafter, he made motions pursuant to CPL article 440 to vacate the judgment of conviction and/or set aside the sentence and these motions were denied. He made a third [1469]*1469CPL article 440 motion and, while it was pending, brought this proceeding pursuant to CPLR article 70 for a writ of habeas corpus. Supreme Court denied the petition without a hearing. This appeal ensued.

Petitioner’s primary contentions are that he was denied the effective assistance of counsel and the plea agreement was invalid because it included a robbery charge that had been dismissed. Petitioner, however, raised these very claims in his prior CPL article 440 motions. Inasmuch as a habeas corpus proceeding is not the proper vehicle for raising arguments that could have been or were raised on direct appeal or in a postconviction motion (see People ex rel. Dixon v Rock, 79 AD3d 1518, 1518 [2010], lv denied 16 NY3d 709 [2011]; People ex rel. Cisson v Artus, 78 AD3d 1392, 1392-1393 [2010]), this CPLR article 70 proceeding is not the proper context within which to raise them. Petitioner further asserts that he is entitled to habeas corpus relief due to the sentencing court’s delay in deciding his third CPL article 440 motion. We find this argument unpersuasive insofar as petitioner could have and did, in fact, raise some of the same claims in his prior CPL article 440 motions and, in any event, he would not be entitled to immediate release if the claims had merit (see People ex rel. Hall v Brown, 74 AD3d 1596 [2010], lv denied 15 NY3d 710 [2010]; People ex rel. Hall v Rock, 71 AD3d 1303, 1304 [2010], appeal dismissed 14 NY3d 882 [2010], lv denied 15 NY3d 703 [2010]). In view of the foregoing, Supreme Court properly denied the petition.

Mercure, J.P., Spain, Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment is affirmed, without costs.

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85 A.D.3d 1468, 926 N.Y.S.2d 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-cicio-v-rock-nyappdiv-2011.

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