People ex rel. Dilbert v. Bradt

117 A.D.3d 1498, 984 N.Y.S.2d 902

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered January 2, 2013 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 on the ground that the evidence adduced at trial was legally insufficient to support the conviction of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference]) inasmuch as the evidence established that his acts against the victim were intentional and manifested an intent to kill. We conclude that Supreme Court properly denied the petition. “ ‘Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion’ ” (People ex rel. Martinez v Graham, 98 AD3d 1312, 1312 [2012], lv denied 20 NY3d 853 [2012]; see People ex rel. Smith v Graham, 109 AD3d 1113, 1113 [2013]; People ex rel. Lewis v Graham, 96 AD3d 1423, 1423 [2012], lv denied 19 NY3d 813 [2012]).

Present—Scudder, EJ., Centra, Fahey, Sconiers and Valentino, JJ.