People ex rel. Spencer v. Burge

307 A.D.2d 772, 762 N.Y.S.2d 858, 2003 N.Y. App. Div. LEXIS 7936

Opinion

Appeal from a judgment (denominated order) of Supreme Court, Cayuga County (Corning, J.), entered May 21, 2002, which dismissed the petition seeking a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly dismissed the peti tion seeking a writ of habeas corpus. “Habeas corpus relief is not a proper remedy where the issues raised in the petition were, or could have been, raised on direct appeal or by a CPL article 440 motion” (People ex rel. Abdullah v Walker, 199 AD2d 1074, 1074 [1993], lv denied 83 NY2d 752 [1994]). The issues raised in the petition were raised and decided against petitioner on direct appeal (People v Spencer, 279 AD2d 539 [2001], lv denied 96 NY2d 835 [2001]) and on his CPL article 440 motion (see Matter of Williams v Henderson, 124 AD2d 994 [1986], lv denied 69 NY2d 605 [1987]; People ex rel. Vess v La Vallee, 55 AD2d 968 [1977]). In addition, petitioner was previously denied habeas corpus relief based upon the same issues raised in the instant proceeding (People ex rel. Spencer v Miller, 277 AD2d 551 [2000]), and he has made no showing of changed circumstances that would warrant further habeas corpus review (see People ex rel. Woodard v Berry, 163 AD2d 759, 760 [1990], lv denied 76 NY2d 712 [1990]; People ex rel. Alim v Smith, 57 AD2d 728, 728-729 [1977], lv denied 42 NY2d 803 [1977]). Present — Green, J.P., Wisner, Burns, Gorski and Hayes, JJ.