| People ex rel. Berry v LaClair |
| 2009 NY Slip Op 06614 [65 AD3d 1428] |
| September 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Jameek Berry,Appellant, v D.E. LaClair, as Superintendent of Franklin Correctional Facility,Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered October 21, 2008 inFranklin County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 2006, petitioner was convicted of two counts of criminal sexual act in the third degree andtwo counts of sexual misconduct. He was sentenced as a second felony offender to consecutiveterms of 2 to 4 years in prison on the criminal sexual act counts and to time served on theremaining counts. His conviction was later affirmed on appeal (People v Berry, 45 AD3d 693[2007]). Petitioner subsequently commenced this proceeding pursuant to CPLR article 70 for awrit of habeas corpus on the ground that his sentence is illegal. Supreme Court deniedpetitioner's application without a hearing, resulting in this appeal.
We affirm. It is well settled that habeas corpus relief is unavailable in cases where an issuecould have been raised on direct appeal or in the context of a CPL article 440 motion (seePeople ex rel. Woodard v Lape, 58 AD3d 903, 904 [2009], lv denied 12 NY3d 706[2009]; People ex rel. Spaulding vNapoli, 50 AD3d 1330, 1331 [2008]). Petitioner took a direct appeal from the judgmentof conviction and could have challenged the legality of his sentence, but did not (see Peoplev Berry, supra). In view of this, and given petitioner's failure to bring a CPL article 440motion asserting the same claim, Supreme Court properly denied the application (see People ex rel. Warren v Artus, 17AD3d 896, 897 [2005], lv denied 5 NY3d 705 [2005]; People ex rel. Sims vSenkowski, 226 AD2d 800 [1996], lv denied 88 NY2d 807 [1996]). Under thecircumstances presented, we find no reason to depart from traditional orderly procedure (see [*2]People ex rel. Figueroa v Walsh, 40 AD3d 1282 [2007]).
Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed, without costs.