| People ex rel. Thorpe v Smith |
| 2009 NY Slip Op 08096 [67 AD3d 1135] |
| November 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Delroy Thorpe,Appellant, v J.T. Smith, as Superintendent of Shawangunk Correctional Facility,Respondent. |
—[*1] Janet DiFiore, District Attorney, White Plains (Raffaelina Gianfrancesco of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Work, J.), entered July 1, 2008 in UlsterCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70,without a hearing.
Petitioner was charged in two indictments with numerous crimes as the result of hisinvolvement in two robberies. The indictments were consolidated and petitioner was convictedin 1998 of robbery in the first degree (three counts), murder in the second degree, attemptedrobbery in the first degree (two counts) and assault in the first degree. He was sentenced to anaggregate term of 33 years to life in prison. His conviction was later affirmed on appeal(People v Thorpe, 291 AD2d 464 [2002], lv denied 98 NY2d 681 [2002]) and hismotion pursuant to CPL 440.10 was denied. Petitioner then brought this application for a writ ofhabeas corpus. Supreme Court dismissed the application without a hearing and this appealensued.
We affirm. It is well settled that habeas corpus relief is unavailable with respect to mattersthat could have been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Mills v Poole, 55AD3d 1289, 1290 [2008], lv denied 11 NY3d 712 [2008]; People ex rel. Reyes vState of New York Dept. of Correctional Servs., 288 AD2d 523 [2001], appeal dismissedand lv denied 97 NY2d 720 [2002]). In the case at hand, petitioner's challenge [*2]to the sufficiency of the indictments could have been raised ondirect appeal and, notably, was raised in the context of his CPL article 440 motion, which wasdenied. Consequently, Supreme Court properly dismissed his application. Furthermore, we notethat petitioner's challenge to the denial of his motion for a subpoena duces tecum is not properlybefore us as petitioner did not file a notice of appeal from said order (see CPLR 5515[1]; see also Hamroff v Hamroff, 35AD3d 365, 366 [2006]). Petitioner's remaining contentions have been considered and havebeen found to be without merit.
Cardona, P.J., Spain, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.