People ex rel. Howard v Rock

2009 NY Slip Op 03071 [61 AD3d 1230]

April 23, 2009

Appellate Division, Third Department

As corrected through Wednesday, June 10, 2009

The People of the State of New York ex rel. Thomas Howard,Appellant, v David Rock, as Superintendent of Great Meadow Correctional Facility,Respondent.

—[*1]Thomas Howard, Comstock, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered July 2, 2008 inWashington County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.

Petitioner, who is serving an aggregate prison term of 42 years following his 2001conviction of multiple sex crimes (People v Howard, 20 AD3d 768 [2005], lv denied 5 NY3d806 [2005]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpusalleging certain constitutional violations and various jurisdictional defects. Habeas corpus reliefdoes not lie where, as here, the arguments advanced could have been raised either upon a directappeal from the judgment of conviction or in the context of a CPL article 440 motion (seePeople ex rel. Woodard v Lape, 58 AD3d 903, 904 [2009]; People ex rel. Malik v Stateof New York, 58 AD3d 1042, 1043 [2009])—even though one of the claims raised isjurisdictional in nature (see People exrel. Moore v Connolly, 56 AD3d 847, 848 [2008], lv denied 12 NY3d 701[2009]). Contrary to petitioner's assertion, a CPL article 440 motion indeed is the mechanism bywhich he may seek to vacate the judgment of conviction upon the ground that the trial courtlacked personal and/or subject matter jurisdiction (see CPL 440.10 [1] [a]). Moreover,while we agree that Supreme Court should not have dismissed petitioner's application prior toconsidering his [*2]timely reply, that error does not entitlepetitioner to the requested relief. In short, as our review of the record reveals no extraordinarycircumstances that would warrant a departure from traditional orderly procedure, SupremeCourt's judgment is affirmed (see People ex rel. Moore v Connolly, 56 AD3d at 848; People ex rel. Hunter v Buffardi, 15AD3d 736 [2005]).

Peters, J.P., Lahtinen, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.