People ex rel. Silverio v. Miller

283 A.D.2d 702, 723 N.Y.S.2d 904, 2001 N.Y. App. Div. LEXIS 4407

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2001
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered August 17, 2000 in Ulster County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without á hearing.

Petitioner is serving a lengthy prison sentence after having been convicted of attempted murder, assault and several weapon-related crimes. He commenced this proceeding for a writ of habeas corpus alleging that his detention is unlawful due to procedural, evidentiary and constitutional errors which occurred during his prosecution. Supreme Court dismissed the application and we affirm.

Inasmuch as the issues advanced by petitioner could have been raised on his direct appeal or in a CPL article 440 motion, we find that habeas corpus relief is unavailable (see, People ex rel. Cano v Kuhlmann, 278 AD2d 632, lv denied 96 NY2d 706; People ex rel. Spencer v Miller, 277 AD2d 551). Moreover, we perceive no circumstances warranting a departure from orderly procedure and, accordingly, the application for a writ of habeas corpus was properly denied (see, People ex rel. Spencer v Miller, supra).

Mercure, J. P., Crew III, Peters, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.