People ex rel. Smith v. Miller

295 A.D.2d 706, 743 N.Y.S.2d 326, 2002 N.Y. App. Div. LEXIS 6111

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 2002
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Connor,- J.), entered November 2, 2000 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, after a hearing.

Following his conviction of the crimes of robbery in the first degree, robbery in the second degree, burglary in the second degree, criminal possession of a weapon in the fourth degree and grand larceny in the third degree, petitioner was sentenced to an aggregate prison term of 10 to 20 years. He then filed this habeas corpus proceeding seeking his release from prison on the ground that, inter alia, he was never arraigned in the Town of Thompson Justice Court on the felony complaint that was filed against him there. Petitioner’s application was dismissed by Supreme Court and we affirm.

The issues advanced by petitioner could have been raised on his direct appeal or in the context of a CPL article 440 motion. Hence, habeas corpus relief is not available to him (see, People ex rel. Silverio v Miller, 283 AD2d 702, 703; People ex rel. Patterson v Lacy, 276 AD2d 961). As this matter presents no circumstances warranting a departure from orderly procedure, we conclude that the habeas corpus proceeding was properly dismissed (see, People ex rel. Spencer v Miller, 277 AD2d 551). Our review of the record herein discloses, in any event, that the issues raised in petitioner’s application are without merit.

Cardona, P.J., Mercure, Crew III, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.