| People ex rel. Abdul-Aziz v Marshall |
| 2009 NY Slip Op 09263 [68 AD3d 902] |
| December 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York ex rel. Khalil Abdul-Aziz,Formerly Known as Robert Collins, Appellant, v Luis R. Marshall,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and LauraR. Johnson of counsel), for respondent.
In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the petitionerappeals from a judgment of the Supreme Court, Westchester County (Cohen, J.), enteredSeptember 30, 2008, which, without a hearing, denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, without costs or disbursements.
"A writ of habeas corpus may not be used for review of issues that have been, or could havebeen, reviewed on direct appeal or by a postjudgment motion addressed to the court in which anunderlying judgment of conviction was rendered" (People ex rel. Dushain v Ercole, 64 AD3d 669 [2009]; seePeople ex rel. Barnes v Fischer, 303 AD2d 526 [2003]). "Further, where, as here, apetitioner presents no fundamental constitutional or statutory claim that was not alreadyreviewed on direct appeal or on his CPL 440.10 motion and would warrant departure fromtraditional, orderly process, the petition is procedurally barred" (People ex rel. Almeyda v Schultz, 18AD3d 582, 582-583 [2005] [internal quotation marks omitted]). Therefore, the SupremeCourt properly denied the petition and dismissed the proceeding without conducting a hearing.Dillon, J.P., Florio, Miller and Angiolillo, JJ., concur.