TUSZYNSKI, DAVID F. v. STALLONE, DAVID

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2014
• Docket: KAH 13-00519
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

411 KAH 13-00519 PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DAVID F. TUSZYNSKI, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

SUPERINTENDENT DAVID STALLONE, CAYUGA CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

CHARLES A. MARANGOLA, MORAVIA, FOR PETITIONER-APPELLANT.

DAVID F. TUSZYNSKI, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered October 29, 2012 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied the petition for a writ of habeas corpus. Petitioner’s contentions were, or could have been, raised on direct appeal from the judgment of conviction or in a motion pursuant to CPL article 440, and thus habeas corpus relief is unavailable (see People ex rel. Montgomery v Artus, 114 AD3d 1171, 1172; see also People v Tuszynski, 71 AD3d 1407, lv denied 15 NY3d 810). Additionally, “petitioner has shown no reason to justify a departure ‘from traditional orderly procedure’ ” (People ex rel. Lanfair v Corcoran, 60 AD3d 1351, 1351, lv denied 12 NY3d 714; see People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101, lv denied 14 NY3d 707, rearg denied 15 NY3d 745). We have reviewed petitioner’s contention in his pro se supplemental brief, and we conclude that it also could have been asserted on direct appeal or in a postconviction motion.

Entered: May 2, 2014 Frances E. Cafarell Clerk of the Court