| People ex rel. Spaulding v Napoli |
| 2008 NY Slip Op 03348 [50 AD3d 1330] |
| April 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Leighton Spaulding,Appellant, v David F. Napoli, as Superintendent of Southport Correctional Facility,Respondent. |
—[*1] Robert T. Johnson, District Attorney, New York City, and Andrew M. Cuomo, AttorneyGeneral, Albany (David M. Finkelstein of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Garry, J.), entered June 4, 2007, whichdenied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLRarticle 70, without a hearing.
Petitioner is currently serving a prison sentence of 25 years to life upon his 1994 convictionof murder in the second degree. The conviction was affirmed upon appeal (People vSpaulding, 222 AD2d 312 [1995], lv denied 88 NY2d 942 [1996]) and, since then,petitioner has made various unsuccessful postconviction applications, including motionspursuant to CPL article 440 and habeas corpus proceedings. Petitioner commenced the instantapplication for a writ of habeas corpus alleging, among other things, that his detention is illegalbecause the indictment was jurisdictionally defective in that it improperly characterized murderin the second degree as an armed felony, and because the correctional facility at which he isdetained does not have a copy of his certificate of conviction on file, in violation of CPL 380.60.Supreme Court denied the application, as well as petitioner's subsequent motion forreconsideration, which the court treated as a motion to reargue. Petitioner now appeals.
The issues presented by petitioner could have been raised on direct appeal or in a motionpursuant to CPL article 440 and, thus, are not proper subjects of a habeas corpus [*2]proceeding (see People ex rel. King v Bennett, 45 AD3d 1015, 1016 [2007],lv denied 10 NY3d 703 [2008]; People ex rel. Alvarez v West, 22 AD3d 996 [2005], lvdenied 6 NY3d 704 [2006]). Furthermore, no extraordinary circumstances exist to justify adeparture from orderly procedure (seePeople ex rel. Figueroa v Walsh, 40 AD3d 1282 [2007]). Accordingly, we affirm.
Cardona, P.J., Spain, Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs.