Peopleexrel.GonzalezvSmith

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2014
• Docket: 518582
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: November 13, 2014 518582 ________________________________

THE PEOPLE OF THE STATE OF NEW YORK ex rel. SANTO GONZALEZ, Appellant, v MEMORANDUM AND ORDER

JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, Respondent. ________________________________

Calendar Date: September 16, 2014

Before: Garry, J.P., Rose, Egan Jr., Devine and Clark, JJ.

__________

Santo Gonzalez, Wallkill, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered January 31, 2014 in Ulster County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Supreme Court denied petitioner's application for a writ of habeas corpus and we now affirm, albeit on different grounds. Petitioner was convicted of numerous crimes in 1981, including attempted murder in the first degree, and is presently serving a lengthy term of imprisonment. He has already challenged that conviction upon direct appeal and in collateral proceedings, including in CPL article 440 motions and habeas corpus -2- 518582

proceedings (see e.g. People ex rel. Gonzalez v New York State Dept. of Correctional Servs., 86 AD3d 886, 886-887 [2011], lv denied 18 NY3d 802 [2011]). Petitioner contended in a prior habeas corpus proceeding that the indictment against him was jurisdictionally defective (id.), and here again advances similar claims. We thus find that "[p]etitioner's arguments either could have been or were raised upon direct appeal or in a CPL article 440 motion and, as no extraordinary circumstances warranting a departure from traditional orderly procedure exist here, habeas corpus relief is unavailable to him" (id. at 887; see People ex rel. Fauntleroy v Rock, 113 AD3d 982, 983 [2014], lv denied 22 NY3d 865 [2014]; People ex rel. Miller v Rock, 109 AD3d 1062, 1062 [2013]).

Garry, J.P., Rose, Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court