| People ex rel. Hall v Rock |
| 2010 NY Slip Op 02039 [71 AD3d 1303] |
| March 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of new York ex rel. Ralph Hall, Appellant,v David Rock, as Superintendent of Great Meadow Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Pritzker, J.), entered May 1, 2009 inWashington County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 2005, petitioner was convicted of multiple crimes, including murder in the first degree,and was sentenced as a second felony offender to a lengthy term of imprisonment having amaximum of life. He appealed his conviction and also brought the instant application pursuant toCPLR article 70 for a writ of habeas corpus. Supreme Court denied the application without ahearing and this appeal ensued.
We affirm. Preliminarily, we have confirmed that petitioner's appeal from his judgment ofconviction has been perfected and calendared in the First Department and, consequently, theinstant habeas corpus application is not his sole remedy. Significantly, his challenge to thesufficiency of the evidence supporting the indictment could have been raised in his direct appealor in the context of a CPL article 440 motion (see People ex rel. Thorpe v Smith, 67 AD3d 1135 [2009]; People ex rel. Lee v Cunningham, 28AD3d 985, 986 [2006], lv denied 7 NY3d 706 [2006]) and, as such, it is not theproper subject of habeas corpus relief. In any event, even if petitioner's claim has merit, habeascorpus relief is unavailable inasmuch as petitioner would not [*2]be entitled to immediate release from prison (see People ex rel. Washington vWalsh, 43 AD3d 1217, 1217 [2007], lv denied 9 NY3d 816 [2007]). Therefore,Supreme Court properly denied petitioner's application.
Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgmentis affirmed, without costs.