People ex rel. Ragland v. Bellnier

Appellate Division of the Supreme Court of New York

People ex rel. Ragland v. Bellnier

83 A.D.3d 1351, 920 N.Y.S.2d 919

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 2011

StatusPublished

Cited by4 cases

This text of 83 A.D.3d 1351 (People ex rel. Ragland v. Bellnier) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Ragland v. Bellnier, 83 A.D.3d 1351, 920 N.Y.S.2d 919 (N.Y. Ct. App. 2011).

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Opinion

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 16, 2009 in Franklin County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2003, petitioner was convicted of burglary in the second degree as well as possession of burglar’s tools and his conviction [1352]*1352was later affirmed on appeal (People v Ragland, 36 AD3d 943 [2007] , lv denied 9 NY3d 925 [2007], cert denied 552 US 1317 [2008] ). In 2009, he brought the instant application for a writ of habeas corpus contending that his detention is illegal because the penal statute under which he was convicted is unconstitutional. Supreme Court denied the application without a hearing. Petitioner appeals.

We affirm. It is well settled that habeas corpus relief is not available where a claim could have been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Joseph v Napoli, 75 AD3d 669, 669 [2010], lv denied 15 NY3d 711 [2010], cert denied sub nom. Joseph v Griffin, 563 US —, 131 S Ct 2108 [2011]; People ex rel. Malik v State of New York, 58 AD3d 1042, 1043 [2009], appeal dismissed 13 NY3d 815 [2009] ). Here, petitioner’s constitutional argument could have been raised in his direct appeal, but was not (People v Ragland, 36 AD3d at 943-944). Likewise, it does not appear to have been the subject of a CPL article 440 motion. Consequently, inasmuch as we perceive no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Franza v Walsh, 76 AD3d 1160, 1160 [2010], lv denied 15 NY3d 716 [2010]; People ex rel. Hayden v Senkowski, 306 AD2d 664, 665 [2003]), we find that Supreme Court properly denied petitioner’s application.

Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 16, 2009 in Franklin County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2003, petitioner was convicted of burglary in the second degree as well as possession of burglar’s tools and his conviction [1352]*1352was later affirmed on appeal (People v Ragland, 36 AD3d 943 [2007] , lv denied 9 NY3d 925 [2007], cert denied 552 US 1317 [2008] ). In 2009, he brought the instant application for a writ of habeas corpus contending that his detention is illegal because the penal statute under which he was convicted is unconstitutional. Supreme Court denied the application without a hearing. Petitioner appeals.

We affirm. It is well settled that habeas corpus relief is not available where a claim could have been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Joseph v Napoli, 75 AD3d 669, 669 [2010], lv denied 15 NY3d 711 [2010], cert denied sub nom. Joseph v Griffin, 563 US —, 131 S Ct 2108 [2011]; People ex rel. Malik v State of New York, 58 AD3d 1042, 1043 [2009], appeal dismissed 13 NY3d 815 [2009] ). Here, petitioner’s constitutional argument could have been raised in his direct appeal, but was not (People v Ragland, 36 AD3d at 943-944). Likewise, it does not appear to have been the subject of a CPL article 440 motion. Consequently, inasmuch as we perceive no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Franza v Walsh, 76 AD3d 1160, 1160 [2010], lv denied 15 NY3d 716 [2010]; People ex rel. Hayden v Senkowski, 306 AD2d 664, 665 [2003]), we find that Supreme Court properly denied petitioner’s application.

Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.

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83 A.D.3d 1351, 920 N.Y.S.2d 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-ragland-v-bellnier-nyappdiv-2011.

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