People ex rel. Smith v. Irvin

284 A.D.2d 1013, 727 N.Y.S.2d 669, 2001 N.Y. App. Div. LEXIS 5915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2001
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied the petition for a writ of habeas corpus. Habeas corpus is not an appropriate remedy where “the contentions raised in the petition ‘could have been raised on direct appeal or pursuant to CPL article 440’ ” (People ex rel. Pangburn v Hodges, 281 AD2d 973, 973-974; see, People ex rel. Kowalczyk v LeFevre, 70 AD2d 745, Iv denied 48 NY2d 602). Although petitioner provided an adequate reason for his failure to take a direct appeal, he provided no reason for his failure to raise his contentions by way of a motion pursuant to CPL 440.10. (Appeal from Judgment of Supreme Court, Erie County, Kane, J. — Habeas Corpus.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Burns, JJ.