People ex rel. Jackson v. New York State Department of Correctional Services

190 A.D.2d 924

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1993
• Status: Published

Opinion

— Appeal from a judgment of the Supreme Court (Berke, J.), entered June 19, 1992 in Washington 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 habeas corpus proceeding to challenge a 1979 conviction on the ground that procedural errors occurred both before and during his trial. It is well established that habeas corpus is not an appropriate remedy where the allegations in the petition could have been raised on direct appeal or in a CPL article 440 motion (see, People ex rel. Christianson v Berry, 165 AD2d 961, lv denied 77 NY2d 805; People ex rel. Rosado v Miles, 138 AD2d 808). Petitioner’s appeal from his judgment of conviction has been affirmed by the Second Department (People v Jackson, 83 AD2d 843). Furthermore, petitioner’s allegations do not warrant a departure from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 AD2d 850, lv denied 75 NY2d 702). Finally, even if petitioner could successfully challenge his 1979 conviction, he would not be entitled to immediate release as he was again convicted and sentenced for crimes committed in December 1983 and January 1984 while he was out on parole. Consequently, habeas corpus relief is inappropriate (see, People ex rel. Stewart v People, 143 AD2d 1068, 1069). We have considered petitioner’s remaining contention and find it lacking in merit.

Weiss, P. J., Levine, Mercure, .Mahoney and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.