People ex rel. Velez v. Artus

49 A.D.3d 1109, 856 N.Y.2d 891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 2008
• Status: Published

Opinion

In 2003, petitioner was sentenced as a persistent violent felony offender to an aggregate prison term of 15 years to life upon his convictions of assault in the second degree (two counts), criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree. His convictions were affirmed upon appeal (People v Velez, 21 AD3d 262 [2005], lv denied 6 NY3d 760 [2005]) and his subsequent application for a federal writ of habeas corpus was denied (Velez v Ercole, 2006 WL 2742046, 2006 US Dist LEXIS 71100 [SD NY 2006]). Thereafter, petitioner commenced the instant CPLR article 70 proceeding seeking a writ of habeas corpus, alleging, among other things, that the evidence presented at trial was legally insufficient to support the convictions. Supreme Court denied the application without a hearing, prompting this appeal.

We affirm. Petitioner’s claims could have been raised on direct appeal or in a CPL article 440 motion and, thus, are not the proper subjects of a habeas corpus proceeding (see People ex rel. King v Bennett, 45 AD3d 1015, 1016 [2007], lv denied 10 NY3d 703 [2008]; People ex rel. Washington v Walsh, 43 AD3d 1217, 1217 [2007], lv denied 9 NY3d 816 [2007]). To the extent that petitioner raises certain claims for the first time on appeal, they are not preserved for our review (see Matter of Woodward v Selsky, 43 AD3d 1209, 1209 [2007]; People ex rel. Persing v Lacy, 276 AD2d 815, 816 [2000]).

Peters, J.P., Spain, Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.