| People ex rel. Washington v Walsh |
| 2007 NY Slip Op 06600 [43 AD3d 1217] |
| September 13, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Charles E.Washington, Appellant, v James J. Walsh, as Superintendent of Sullivan Correctional Facility, etal., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Hannah Stith Long of counsel), forrespondents.
Appeal from an amended judgment of the Supreme Court (LaBuda, J.), entered September19, 2006 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, ina proceeding pursuant to CPLR article 70, without a hearing.
In 1995, petitioner was convicted of manslaughter in the first degree and criminal possessionof a weapon in the third degree and sentenced to an aggregate prison term of 35 years to life. Hisconviction was affirmed by the Second Department (People v Washington, 253 AD2d777 [1998], lv denied 92 NY2d 1040 [1998]). He has filed four separate unsuccessfulmotions to vacate his conviction pursuant to CPL article 440. His application for a writ of errorcoram nobis was similarly unsuccessful (People v Washington, 288 AD2d 408 [2001]),as was his federal application for a writ of habeas corpus (Washington v Walsh, 2002WL 2003207, 2002 US Dist LEXIS 16312 [ED NY 2002]). Petitioner commenced this CPLRarticle 70 proceeding seeking a writ of habeas corpus based upon allegations of ineffectiveassistance of counsel, prosecutorial misconduct, evidentiary errors at trial, wrongful deprivationof transcripts and the imposition of an improper and unconstitutional sentence. Supreme Courtdenied petitioner's application without a hearing, prompting this appeal.[*2]
Petitioner's arguments either already were raised in, orshould have been addressed through, his direct appeal or a CPL article 440 motion, making themimproper subjects of this habeas corpus proceeding (see People ex rel. Ariola v Greene, 28 AD3d 1038, 1039 [2006],lv denied 7 NY3d 706 [2006]). In any event, habeas corpus relief is unavailable topetitioner because none of his arguments, even if found to be meritorious, would form the basisfor his immediate release from prison (see People ex rel. Tunstall v Miller, 24 AD3d 921, 921 [2005],lv denied 6 NY3d 710 [2006]). Accordingly, we affirm.
Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ., concur. Ordered that the amendedjudgment is affirmed, without costs.