| People ex rel. Burgess v Ercole |
| 2010 NY Slip Op 00891 [70 AD3d 735] |
| February 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York ex rel. James Burgess,Appellant, v Robert Ercole, Respondent. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York, N.Y. (Amyjane Rettew and OliviaSohmer 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, Dutchess County (Dolan, J.), entered August 2,2007, 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], lvdenied 13 NY3d 709 [2009]; seePeople ex rel. Abdul-Aziz v Marshall, 68 AD3d 902 [2009]; People ex rel. Barnes vFischer, 303 AD2d 526 [2003]). Here, the petitioner raised the identical issue in two priorunsuccessful motions for postconviction relief under CPL article 440. Leave to appeal from theorders determining those motions was denied. Where a petitioner presents no fundamentalconstitutional or statutory claim that was not already reviewed on a prior CPL article 440motion, the petition is procedurally barred (see People ex rel. Almeyda v Schultz, 18 AD3d 582, 582-583[2005]).
Therefore, the Supreme Court properly denied the petition and dismissed the proceedingwithout conducting a hearing. Skelos, J.P., Santucci, Dickerson and Roman, JJ., concur.[*2]