| People ex rel. Bazil v Marshall |
| 2010 NY Slip Op 07796 [77 AD3d 982] |
| October 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York ex rel. Kenneth Bazil,Appellant, v Luis Marshall, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and DavidLawrence III 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 (Adler, J.), entered May 6,2009, 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]; see People ex rel. Bedell v Ercole, 71AD3d 801 [2010]; People ex rel.Burgess v Ercole, 70 AD3d 735 [2010]; People ex rel. Abdul-Aziz v Marshall, 68 AD3d 902, 902 [2009];People ex rel. Almeyda v Schultz,18 AD3d 582, 582 [2005]). The petitioner argues that, because the Supreme Court included,as part of its jury instruction with respect to the count of robbery in the first degree, that "seriousphysical injury is death," that instruction was indistinguishable from the instruction with respectto the count of felony murder. The petitioner contends that, as such, the felony murderinstruction, while not facially unconstitutional, was unconstitutionally vague as applied to himunder the circumstances of the underlying criminal prosecution. Since the petitioner claims that itwas the manner in which the elements of the two counts were charged to the jury that made thetwo counts indistinguishable, he is, in effect, challenging a jury instruction, a challenge that couldhave been raised on his direct appeal from the judgment of conviction (see People ex rel.Dushain v Ercole, 64 AD3d at 669; People ex rel. Barnes v Fischer, 303 AD2d 526,526 [2003]; People v Bazil, 219 AD2d 604 [1995]). Consequently, habeas corpus relief isunavailable.
Moreover, even if the petitioner were successful in his argument, the only relief availablewould be a new trial. Since the petitioner would not be entitled to immediate release from prison,habeas corpus relief does not lie for this reason as well (see People ex rel. Douglas vVincent, 50 NY2d 901, 903 [1980]; People ex rel. Hall v Rock, 71 AD3d 1303, 1304 [2010]; People v Cordes, 71 AD3d 912,913 [2010]; People ex rel. VanSteenburg v Wasser, 69 AD3d 1135, 1136 [2010]; People ex rel. Marsh vMiller, 275 AD2d 822 [2000]).
The petitioner's remaining contentions are without merit.[*2]
Accordingly, the Supreme Court properly denied thepetition and dismissed the proceeding. Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.