In 2003, petitioner was convicted of burglary in the second degree as well as possession of burglar's tools and his conviction was later affirmed on appeal ( People v Ragland, 36 AD3d 943, lv denied 9 NY3d 925, cert denied 552 US 1317). In 2009, he brought the instant application for a writ of habeas corpus contending that his detention is illegal because the penal statute under which he was convicted is unconstitutional. Supreme Court denied the application without a hearing. Petitioner appeals.
We affirm. It is well settled that habeas corpus relief is not available where a claim could have been raised on direct appeal or in the context of a CPL article 440 motion ( see People ex rel. Joseph v Napoli, 75 AD3d 669, 669, lv denied 15 NY3d 711, cert denied sub nom. Joseph v Griffin, 563 US ___, ___ S Ct ___, 2011 WL 532257, 2011 US LEXIS 3159; People ex rel. Malik v State of New York, 58 AD3d 1042, 1043, appeal dismissed 13 NY3d 815). Here, petitioner's constitutional argument could have been raised in his direct appeal, but was not ( People v Ragland, 36 AD3d at 943-944). Likewise, it does not appear to have been the subject of a CPL article 440 motion. Consequently, inasmuch as we perceive no extraordinary circumstances warranting a departure from traditional orderly procedure ( see People ex rel. Franza v Walsh, 76 AD3d 1160, 1160, lv denied 15 NY3d 716; People ex rel. Hayden v Senkowski, 306 AD2d 664, 665), we find that Supreme Court properly denied petitioner's application.
Ordered that the judgment is affirmed, without costs.