People Ex Rel. Frederick v. Superintendent, Auburn Correctional Facility

2017 NY Slip Op 9063, 156 A.D.3d 1468, 65 N.Y.S.3d 877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2017
• Docket: 1475 KAH 17-00488
• Status: Published

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered October 13, 2016 in a habeas corpus proceeding. The judgment denied the petition and dismissed the proceeding.

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

Memorandum: Supreme Court properly denied the petition seeking a writ of habeas corpus and dismissed the proceeding. Habeas corpus relief is not an appropriate remedy where, as here, the claim raised by petitioner was or could have been raised on direct appeal or in a proceeding pursuant to CPL article 440 (see People ex rel. Haddock v Dolce, 149 AD3d 1593, 1593 [4th Dept 2017], lv denied 29 NY3d 917 [2017]). In addition, inasmuch as petitioner would not be entitled to immediate release even if his present contentions in his main and pro se supplemental briefs had merit, habeas corpus relief was properly denied on that ground as well (see People ex rel. Bagley v Albaugh, 278 AD2d 891, 891-892 [4th Dept 2000], lv denied 96 NY2d 709 [2001]).

Present—Whalen, P.J., Smith, Carni, Troutman and Winslow, JJ.