People ex rel. Woods v. Walker

283 A.D.2d 991, 724 N.Y.S.2d 390, 2001 N.Y. App. Div. LEXIS 4499

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition seeking to overturn petitioner’s 1993 conviction of unauthorized use of a motor vehicle in the second degree and criminal possession of stolen property in the fourth degree, among other crimes, for which petitioner is serving an indeterminate term of incarceration of 15 years to life as a persistent felony offender. The petition raises issues that either were raised or could have been raised on petitioner’s prior direct appeal or by a postjudgment motion pursuant to CPL article 440 (see, People ex rel. Rodriguez v Walker [appeal No. 1], 278 AD2d 943, lv denied 96 NY2d 707; People ex rel. Johnson v Walker, 262 AD2d 1005, lv denied 93 NY2d 818, cert denied 528 US 1165). Petitioner failed to preserve for our review his contention that the court erred in failing to require respondent to file a return pursuant to CPLR 7008 (see, People ex rel. Vasquez v McCoy, 280 AD2d 929). In any event, petitioner’s contention is without merit. “CPLR 7008 does not mandate that respondent file a return or prohibit the court from reaching the merits of the petition in the absence of a return” (People ex rel. Vasquez v McCoy, supra, at 929). (Appeal from Judgment of Supreme Court, Cayuga County, Corning, J. — Habeas Corpus.) Present — Pigott, Jr., P. J., Wisner, Scudder, Kehoe and Burns, JJ.