People ex rel. Burr v. Rock

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 31, 2011 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is currently serving a prison term of 25 years to life as a result of his conviction of the crimes of murder in the second degree and assault in the second degree. His conviction was affirmed on appeal ( People v. Burr, 124 A.D.2d 5, 510 N.Y.S.2d 949 [1987], affd. 70 N.Y.2d 354, 520 N.Y.S.2d 739, 514 N.E.2d 1363 [1987], cert. denied 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505 [1988] ). Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus claiming that his arrest was unlawful. Supreme Court denied the application without a hearing and petitioner appeals.

We affirm. Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature ( see People ex rel. Lainfiesta v. Lape, 83 A.D.3d 1303, 1303, 922 N.Y.S.2d 591 [2011], lv. denied 17 N.Y.3d 708, 2011 WL 4030045 [2011]; People ex rel. Chapman v. LaClair, 64 A.D.3d 1026, 1026, 882 N.Y.S.2d 758 [2009], lv. denied 13 N.Y.3d 712, 2009 WL 4017062 [2009] ). CPL 440.10(1)(a) specifically authorizes a motion to vacate a judgment upon the ground that the court did not have jurisdiction of the defendant ( compare People ex rel. Johnson v. Fischer, 69 A.D.3d 1100, 1101, 893 N.Y.S.2d 349 [2010], lv. denied 14 N.Y.3d 707, 2010 WL 1286811 [2010] ). Accordingly, we find no reason to depart from the traditional orderly procedure ( see People ex rel. Purdie v. LaValley, 86 A.D.3d 883, 884, 928 N.Y.S.2d 381 [2011]; People ex rel. Cisson v. Artus, 78 A.D.3d 1392, 1393, 910 N.Y.S.2d 700 [2010] ).

ORDERED that the judgment is affirmed, without costs. PETERS, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ., concur.