| People ex rel. King v Bennett |
| 2007 NY Slip Op 08335 [45 AD3d 1015] |
| November 8, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Peter King, Appellant,v Floyd Bennett, as Superintendent of Elmira Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Walsh of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Rumsey, J.), entered July 17, 2006in Chemung County, which dismissed petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 1986, petitioner was convicted, following a jury trial, of two counts of murder in thesecond degree and sentenced to a prison term of 25 years to life. His direct appeal was dismissedas untimely; between that time and the commencement of the present habeas corpus petition, hehas commenced seven unsuccessful postconviction proceedings—including three motionspursuant to CPL 440.10, a motion for a writ of error coram nobis contending that his appellatecounsel was ineffective, one previous petition for a writ of habeas corpus pursuant to CPLRarticle 70 and an application for a writ of habeas corpus in federal court. In the instant petition fora writ of habeas corpus, petitioner presents an extensive list of alleged errors at the trial level inhis attempt to seek review of his conviction. Finding both that the grounds advanced bypetitioner had been or could have been raised on direct appeal or by collateral motion and thathabeas relief was not appropriate because success would not entitle petitioner to immediaterelease from custody, Supreme Court dismissed the petition. Petitioner appeals and we now [*2]affirm.
Under firmly established law, an application for a writ of habeas corpus is not the appropriatevehicle for claims which could have been raised on direct appeal or in a collateral motion (see People ex rel. Frantz v Smith, 35AD3d 1024, 1024 [2006], lv denied 8 NY3d 806 [2007]; People ex rel. Wright v Miller, 16AD3d 746, 746 [2005], lv denied 5 NY3d 703 [2005]; People ex rel. King vDuncan, 282 AD2d 908, 908 [2001], lv denied 96 NY2d 716 [2001]). A review ofthe petition reveals no issue which could not have been raised by one of these other means. Inany event, inasmuch as none of the grounds asserted by petitioner would entitle him to immediaterelease from custody, habeas corpus relief is additionally inappropriate here (see People exrel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648, 649 [1983];People ex rel. Douglas v Vincent, 50 NY2d 901, 903 [1980]; People ex rel. Brown vKeane, 284 AD2d 813, 813 [2001]; People ex rel. Carter v Miller, 261 AD2d 674,675 [1999]).
Mercure, J.P., Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.