| People ex rel. Clark v Artus |
| 2009 NY Slip Op 05218 [63 AD3d 1455] |
| June 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Rickey Clark,Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility,Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 21, 2008 inClinton County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 2004, following a jury trial, petitioner was convicted of burglary in the second degree andpossession of burglar's tools and sentenced, as a second violent felony offender, to concurrentprison terms of 15 years and one year, respectively. Petitioner's conviction and sentence wereaffirmed on appeal (People v Clark,23 AD3d 673 [2005], lv denied 6 NY3d 832 [2006]), and the subsequent denial ofhis application for a writ of error coram nobis was also affirmed (People v Clark, 45 AD3d 776[2007], lv denied 10 NY3d 762 [2008]). Petitioner thereafter commenced this CPLRarticle 70 proceeding for a writ of habeas corpus alleging that, for various reasons, hisdetainment was illegal. Supreme Court denied the application and this appeal ensued. We nowaffirm.
Petitioner challenges his conviction on multiple grounds, including that County Courtallegedly stated, in an off-the-record colloquy, that the People failed to submit sufficientevidence at his criminal trial to demonstrate that petitioner had committed a crime and that suchshould have resulted in an acquittal. However, we note that habeas corpus relief is unavailable,inasmuch as the issues now raised could have been raised on petitioner's direct appeal from hisjudgment of conviction or via a CPL article 440 motion. Moreover, we perceive no reason in thiscase to depart from the existing orderly procedure (see People ex rel. Moore v Connolly,56 [*2]AD3d 847, 848 [2008], lv denied 12 NY3d 701[2009]; see also People ex rel. Keitt v McMann, 18 NY2d 257, 262 [1966]).Accordingly, Supreme Court did not err in denying the petition (see People ex rel. Moore vConnolly, 56 AD3d at 848; Peopleex rel. Barnes v Allard, 25 AD3d 893, 894 [2006], lv denied 6 NY3d 714[2006]).
Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.