| People ex rel. Pittman v Yelich |
| 2010 NY Slip Op 09443 [79 AD3d 1506] |
| December 23, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Danyell L. Pittman,Appellant, v Bruce Yelich, as Superintendent of Bear Hill Correctional Facility,Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 6, 2010 in FranklinCounty, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant toCPLR article 70, without a hearing.
In January 2008, petitioner pleaded guilty to criminal possession of a controlled substance in thethird degree and was sentenced as a second drug felony offender to five years in prison followed byone year of postrelease supervision. Petitioner failed to file a timely appeal from his judgment ofconviction and his motion for an extension of time to file an appeal was denied. Thereafter, petitionermoved to vacate his judgment of conviction pursuant to CPL 440.10 and Herkimer County Court(Kirk, J.) issued a written order denying the motion, without a hearing, and the Fourth Departmentdenied permission to appeal from that order. Petitioner then commenced this proceeding pursuant toCPLR article 70 for a writ of habeas corpus seeking to be released from prison. Supreme Court deniedpetitioner's application without a hearing, and this appeal ensued.
In support of his application, petitioner contends that he was denied his constitutional right to aspeedy trial and that he received ineffective assistance of counsel. Because these claims could havebeen raised on direct appeal and were, in fact, raised in petitioner's unsuccessful CPL article 440motion, habeas corpus relief is unavailable (see People ex rel. Johnson v Fischer, 69 AD3d 1100 [2010], lvdenied 14 NY3d 707 [2010]; People exrel. Chapman v LaClair, 64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712[2009]). Furthermore, [*2]we find the circumstances present no reasonto depart from traditional orderly procedure (see People ex rel. Chapman v LaClair, 64 AD3dat 1026-1027; People ex rel. Clark vArtus, 63 AD3d 1455, 1456 [2009]).
Cardona, P.J., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.