People ex rel. Mills v. Poole

55 A.D.3d 1289, 864 N.Y.S.2d 364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2008
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered May 15, 2007. The judgment dismissed the petition for a writ of habeas corpus.

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. In support thereof, he contended that the evidence is legally insufficient to support the conviction of, inter alia, attempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]), that the indictment was procedurally defective, and that he was denied his right to a speedy trial and his right to effective assistance of counsel. We conclude that Supreme Court properly dismissed the petition sua sponte. Those contentions could have been, or were, raised on direct appeal or by a motion pursuant to CPL article 440, and thus habeas corpus relief is unavailable (see People ex rel. Smith v Burge, 11 AD3d 907 [2004], lv denied 4 NY3d 701 [2004]; People ex rel. Pitts v McCoy, 11 AD3d 985 [2004], lv denied 4 NY3d 705 [2005]; People ex rel. Pearson v Garvin, 211 AD2d 690 [1995]). Present — Hurlbutt, J.P., Smith, Centra, Fahey and Gorski, JJ. [See 15 Misc 3d 1101(A), 2007 NY Slip Op 50446(H) (2007).]