| People ex rel. Joseph v Napoli |
| 2010 NY Slip Op 05816 [75 AD3d 669] |
| July 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Ricardo Joseph,Appellant, v David Napoli, as Superintendent of Southport Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Fitzgerald, J.), entered February 27, 2009 inChemung County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
Petitioner was convicted of murder in the second degree (two counts) and robbery in the firstdegree in 2002 and was sentenced to an aggregate term of 30 years to life in prison. Thereafter,in 2007, petitioner was convicted of assault in the second degree and sentenced as a secondviolent felony offender to a prison term of five years followed by five years of postreleasesupervision, to be served consecutively to his 2002 sentence. Alleging that certificates ofconviction were not properly executed and filed in the counties in which he was convicted,petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus. Theapplication was denied by Supreme Court and petitioner now appeals.
We affirm. Initially, we note that because petitioner could have raised this argument by wayof a CPL article 440 motion or on direct appeal, habeas corpus relief is unavailable (see People ex rel. Brown v Artus, 64AD3d 1064, 1064 [2009], lv denied 13 NY3d 709 [2009]; People ex rel.Woodard v Lape, 58 AD3d 903, 904 [2009], lv denied 12 NY3d 706 [2009]). In anyevent, we find the sentence and commitment forms submitted by petitioner to be adequate [*2]and, moreover, even if they were inadequate, it still would notrender petitioner's sentence and commitment defective (see People ex rel. Haynes v Artus, 51 AD3d 1075 [2008]).
Cardona, P.J., Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.