| People ex rel. Johnson v Fischer |
| 2010 NY Slip Op 00356 [69 AD3d 1100] |
| January 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Johnathan Johnson,Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 6, 2009 inFranklin County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 1988, petitioner was convicted of robbery in the first degree and sentenced to a prisonterm of 7½ to 15 years. That conviction was later affirmed on appeal (People vJohnson, 163 AD2d 613 [1990], lv denied 76 NY2d 940 [1990], appealdismissed 85 NY2d 939 [1995]). Subsequently, petitioner was convicted of, as relevant here,attempted rape in the first degree and sentenced to a prison term of 7½ to 15 years to beserved consecutively to his first prison term. That conviction was also affirmed on appeal(People v Johnson, 181 AD2d 914 [1992], lv denied 80 NY2d 833 [1992]).Petitioner then commenced this CPLR article 70 proceeding seeking a writ of habeas corpus.Supreme Court denied the application without a hearing and this appeal ensued.
We affirm. Here, petitioner asserts that neither jury would have convicted him if it hadaccess [*2]to certain information that was discovered subsequentto his convictions. However, habeas corpus relief is not appropriate where the claims beingraised could have been asserted on direct appeal or in a CPL article 440 motion (see People ex rel. Chapman v LaClair,64 AD3d 1026, 1026 [2009]; People ex rel. Moore v Connolly, 56 AD3d 847, 847-848 [2008],lv denied 12 NY3d 701 [2009]). CPL 440.10 (1) (g) specifically authorizes a motion tovacate a judgment upon the ground of newly discovered evidence (see People v Tucker, 40 AD3d1213, 1214 [2007], lv denied 9 NY3d 882 [2007]), and the likelihood that such amotion would have been unsuccessful does not entitle petitioner to habeas corpus relief.Accordingly, we find no reason, under the circumstances presented, to depart from the traditionalorderly procedure (see People ex rel. Chapman v LaClair, 64 AD3d at 1026-1027).
We have examined petitioner's remaining contentions and have determined them to bewithout merit.
Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.