People ex rel. Tuszynski v. Stallone

117 A.D.3d 1472, 984 N.Y.S.2d 623

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2014
• Status: Published

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered October 29, 2012 in a habeas corpus proceeding. The judgment denied the petition.

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

Memorandum: Supreme Court properly denied the petition for a writ of habeas corpus. Petitioner’s contentions were, or could have been, raised on direct appeal from the judgment of conviction or in a motion pursuant to CPL article 440, and thus habeas corpus relief is unavailable (see People ex rel. Montgomery v Artus, 114 AD3d 1171, 1172 [2014]; see also People v Tuszynski, 71 AD3d 1407 [2010], lv denied 15 NY3d 810 [2010]). Additionally, “petitioner has shown no reason to justify a departure ‘from traditional orderly procedure’ ” (People ex rel. Lanfair v Corcoran, 60 AD3d 1351, 1351 [2009], lv denied 12 NY3d 714 [2009]; see People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101 [2010], lv denied 14 NY3d 707 [2010], rearg denied 15 NY3d 745 [2010]). We have reviewed petitioner’s contention in his pro se supplemental brief, and we conclude that it also could have been asserted on direct appeal or in a postconviction motion.

Present — Smith, J.P, Fahey, Peradotto, Sconiers and Valentino, JJ.