People v. Cunningham

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

Opinion

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered November 21, 2013 in Sullivan County, which, in a proceeding pursuant to CPLR article 70, denied petitioner's motion to reargue.

In 1988, petitioner was convicted after a jury trial of sodomy

in the first degree, robbery in the first and second degrees and criminal possession of stolen property and sentenced, as a second violent felony offender, to a prison term of 25 to 50 years (People v. Adams,178 A.D.2d 536, 577 N.Y.S.2d 637 [1991], lv. denied79 N.Y.2d 943, 583 N.Y.S.2d 197, 592 N.E.2d 805 [1992]). His subsequent application for a writ of error coram nobis was denied (People v. Adams,223 A.D.2d 649, 637 N.Y.S.2d 316 [1996]) and, in 1994 and 2012, his motions to vacate the judgment of conviction pursuant to CPL article 440 were denied. In 2013, petitioner commenced this proceeding for a writ of habeas corpus alleging, among other things, that he had been deprived of various constitutional rights in the criminal action, including the right to the effective assistance of counsel, and challenging the evidence adduced therein. Supreme Court denied petitioner's application and dismissed the petition by judgment entered October 1, 2013. Petitioner thereafter moved to reargue, which the court denied in a judgment entered November 21, 2013. Petitioner now appeals from the judgment denying his motion to reargue.

No appeal lies from the denial of a motion to reargue (see People ex rel. Timothy I. v. Campbell,95 A.D.3d 1497, 944 N.Y.S.2d 674 [2012]; Putney v. People,94 A.D.3d 1193, 1195, 942 N.Y.S.2d 252 [2012], appeal dismissed19 N.Y.3d 1020, 951 N.Y.S.2d 716, 976 N.E.2d 244 [2012], lv. dismissed and denied21 A.D.3d 909, 800 N.Y.S.2d 627 [2013]). Further, petitioner's motion was not identified as, and cannot be viewed as, a motion to renew given that he did not allege “new facts” not previously offered “that would change the prior determination” or provide “reasonable justification for the failure to present such facts on the prior motion” (

CPLR 2221[e][2], [3]; see Gonzalez v. L'Oreal USA, Inc.,92 A.D.3d 1158, 1160, 940 N.Y.S.2d 328 [2012], lv. dismissed19 N.Y.3d 874, 947 N.Y.S.2d 48, 969 N.E.2d 1163 [2012]). Thus, petitioner's appeal from the judgment denying reargument must be dismissed.

ORDERED that the appeal is dismissed, without costs.

LAHTINEN, J.P., GARRY, LYNCHand CLARK, JJ., concur.

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