| People ex rel. Fulton v Lape |
| 2009 NY Slip Op 03068 [61 AD3d 1227] |
| April 23, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Alvin Fulton Jr.,Appellant, v William Lape, as Superintendent of Coxsackie Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Teresi, J.), entered August 26, 2008 inGreene County, which denied petitioner's application for a writ of habeas corpus, in a proceedingpursuant to CPLR article 70, without a hearing.
Petitioner, who is serving a 25-year prison term following his 2002 conviction of course ofsexual conduct against a child in the first degree (People v Fulton, 13 AD3d 1217 [2004], lv denied 4 NY3d830 [2005]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpuscontending, among other things, that the trial court lacked subject matter jurisdiction and he wasdenied the effective assistance of counsel. Habeas corpus relief does not lie where, as here, thearguments advanced could have been raised either upon a direct appeal from the judgment ofconviction or in the context of a CPL article 440 motion (see People ex rel. Woodard vLape, 58 AD3d 903, 904 [2009]; People ex rel. Malik v State of New York, 58AD3d 1042, 1043 [2009])—even though one of the contentions raised is jurisdictional innature (see People ex rel. Moore vConnolly, 56 AD3d 847, 848 [2008], lv denied 12 NY3d 701 [2009]). As ourreview of the record reveals no extraordinary circumstances that would warrant a departure fromtraditional orderly procedure, Supreme Court's judgment is affirmed (see People ex rel.Moore v Connolly, 56 AD3d at 848; People ex rel. Hunter v Buffardi, 15 AD3d 736 [2005]).[*2]
Cardona, P.J., Peters, Spain, Lahtinen and Kavanagh, JJ.,concur. Ordered that the judgment is affirmed, without costs.