People ex rel. Forsythe v Poole

2008 NY Slip Op 08937 [56 AD3d 1239]

November 14, 2008

Appellate Division, Fourth Department

As corrected through Wednesday, January 7, 2009

The People of the State of New York ex rel. Marvin Forsythe,Appellant, v Thomas Poole, Superintendent, Five Points Correctional Facility,Respondent.

—[*1]Charles J. Greenberg, Buffalo, for petitioner-appellant.

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.),entered August 14, 2007 in a habeas corpus proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on theground that the court in which he was convicted lacked jurisdiction. Contrary to petitioner'scontention, Supreme Court properly dismissed the petition sua sponte. The issues raised in thepetition either could have been or were raised on direct appeal or by a motion pursuant to CPLarticle 440 (see People ex rel. Smith v Burge, 11 AD3d 907 [2004], lv denied 4NY3d 701 [2004]; People ex rel. Gloss v Costello, 309 AD2d 1160 [2003], lvdenied 1 NY3d 504 [2003]; People ex rel. Minter v Eisenschmidt, 294 AD2d 939[2002], lv denied 98 NY2d 609 [2002]). Present—Hurlbutt, J.P., Smith, Green,Pine and Gorski, JJ.