People ex rel. Whitehead v. Jones

184 A.D.2d 801, 584 N.Y.S.2d 338, 1992 N.Y. App. Div. LEXIS 7851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1992
• Status: Published

Opinion

Weiss, P. J.

Appeal from a judgment of the Supreme Court (Berke, J.), entered December 18, 1990 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner alleges in this proceeding that his conviction for grand larceny upon a plea of guilty is invalid due to the Supremacy Clause of the Federal Constitution. He contends that the acts underlying the crime for which he was convicted were performed in his role as an informant/agent for the Federal Government, which status afforded him immunity from State criminal prosecution (see, Connecticut v Marra, 528 F Supp 381). Supreme Court denied the petition and petitioner has appealed.

Habeas corpus is not an appropriate remedy in which to raise issues which could have been advanced on direct appeal or in a motion pursuant to CPL 440.10 (People ex rel. Rosado v Miles, 138 AD2d 808). At the time of his conviction, petitioner was aware of the facts and circumstances which he now asserts. His explanation for failing to pursue an appeal or to move to vacate his conviction pursuant to CPL 440.10 is unconvincing and his allegations in the petition do not merit departure from traditional orderly procedure (see, People ex rel. Keitt v McMann, 18 NY2d 257). We further note that the petition contains only conclusory allegations and general assertions that his criminal activities were interrelated with his role as an informant without providing specific facts to support his claim (see, People ex rel. Boyd v LeFevre, 92 AD2d 1042, lv denied 59 NY2d 604; People ex rel. Durrant v McKendrick, 30 AD2d 1021, lv denied 23 NY2d 643).

Yesawich Jr., Crew III, Casey and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.