People ex rel. Littlejohn v. Griffin

133 A.D.3d 996, 18 N.Y.S.3d 888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 2015
• Docket: 520248
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Cahill, J.), entered November 12, 2014 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.

In 1999, petitioner was convicted of manslaughter in the first degree and sentenced, as a second felony offender, to 22 years in prison. He commenced this proceeding for a writ of habeas corpus contending that his conviction is invalid because that crime was not charged in the indictment. Supreme Court dismissed the petition without a hearing and this appeal ensued.

We affirm. The petition was properly dismissed as habeas corpus relief is unavailable where, as here, petitioner’s contention could have been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Reyes v State of New York Dept. of Correctional Servs., 288 AD2d 523, 523 [2001], appeal dismissed and lv denied 97 NY2d 720 [2002]). Contrary to petitioner’s assertion, the record discloses no extraordinary circumstances to warrant a departure from traditional orderly procedure (see People ex rel. Reed v Tedford, 110 AD3d 1123, 1123 [2013], appeal dismissed and lv denied 22 NY3d 1008 [2013]).

Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.