It is hereby ordered that said petition be and the same hereby is unanimously denied without costs.
Memorandum: Petitioner commenced this original proceeding seeking a writ of habeas corpus. According to petitioner, the evidence presented at; his trial in 1998 does not support his conviction of depraved indifference murder in light of the decisions of the Court of Appeals in People v Payne ( 3 NY3d 266, rearg denied 3 NY3d 767), People v Suarez ( 6 NY3d 202), and People v Feingold ( 7 NY3d 288). "Because the petition raises issues that could have been and were raised on petitioner's direct appeal and by a CPL 440.10 motion, habeas corpus relief is unavailable" ( People ex rel. Lyons v Conway, 32 AD3d 1324 [2006], lv denied 8 NY3d 802; see e.g. People ex rel. Gloss v Costello, 309 AD2d 1160, lv denied 1 NY3d 504; People ex rel. Spencer v Burge, 307 AD2d 772). In any event, pursuant to the express statement of the Court of Appeals in Policano v Herbert ( 7 NY3d 588, 603), the case law upon which defendant relies does not apply retroactively.