People ex rel. Zarro v. McKinney

48 A.D.3d 823, 849 N.Y.S.2d 811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2008
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Ferradino, J.), entered November 6, 2006 in Saratoga County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2004, as a result of an investigation by the Attorney General, petitioner was convicted of scheme to defraud in the first degree, grand larceny in the first degree, five counts of grand larceny in the second degree, two counts of grand larceny in the third degree and four counts of criminal possession of stolen property in the second degree, and he was sentenced to an aggregate prison term of 7 to 21 years. Petitioner thereafter commenced the instant proceeding pursuant to CPLR article 70 for a writ of habeas corpus, alleging, among other things, that the Attorney General did not have the authority to prosecute him and that the conviction was obtained in violation of his constitutional rights. Supreme Court dismissed the petition without a hearing and petitioner now appeals.

We affirm. Inasmuch as the issues that petitioner presents were already raised in his CPL article 440 motion or could be raised on his pending direct appeal, habeas corpus relief is inappropriate (see People ex rel. King v Bennett, 45 AD3d 1015, 1016 [2007]; People ex rel. Spencer v Miller, 277 AD2d 551 [2000]).

Cardona, P.J., Peters, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, without costs.