| People ex rel. McDermott v Artus |
| 2007 NYSlipOp 01645 |
| March 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Mark K. McDermott, Appellant, v Dale A. Artus, as Superintendent of Clinton Correctional Facility, Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 28, 2006 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Following his conviction of multiple counts of burglary in the second degree in Herkimer and Oneida Counties, petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus. He based his application upon claims that his waiver of indictment and guilty pleas were involuntary and that the case was improperly prosecuted by the procedure set forth in CPL 195.10. Supreme Court summarily denied the application without a hearing and this appeal ensued.
We agree with Supreme Court that petitioner's claims could have been raised in a direct appeal or in his unsuccessful CPL article 440 motions to vacate the conviction. Thus, habeas corpus relief is unavailable (see People ex rel. Johnson v McGinnis, 28 AD3d 896, 897 [2006], lv denied 7 NY3d 705 [2006]; People ex rel. Hunter v Buffardi, 15 AD3d 736, 737 [2005]). In any event, even if his claims were meritorious, they would not entitle him to immediate release from prison (see People ex rel. Bonez v West, 22 AD3d 992, 993 [2005], lv denied 6 NY3d 704 [2006]). Therefore, Supreme Court properly denied the application.
Mercure, J.P., Peters, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.