| People ex rel. Dixon v Rock |
| 2010 NY Slip Op 09454 [79 AD3d 1518] |
| December 23, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Echo Westley Dixon,Appellant, v D. Rock, as Superintendent of Upstate Correctional Facility,Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 26, 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 February 2003, petitioner was convicted of two counts of arson in the second degree and onecount of arson in the third degree and was sentenced as a second violent felony offender to anaggregate term of 12 years in prison. Petitioner's judgment of conviction was affirmed on appeal (People v Dixon, 19 AD3d 131 [2005],lv denied 5 NY3d 805 [2005]). Petitioner thereafter moved to vacate his judgment ofconviction pursuant to CPL 440.10, and Bronx County Court (Cirigliano, J.) issued a written decisiondenying the motion, without a hearing, finding that the issues raised by petitioner could have beenreviewed on direct appeal. In March 2003, petitioner was convicted of robbery in the second degreeand sentenced as a second violent felony offender to 10 years in prison, and that judgment of convictionwas also affirmed on appeal (People vDixon, 19 AD3d 132 [2005], lv denied 5 NY3d 827 [2005]). Petitioner thencommenced this CPLR article 70 proceeding seeking a writ of habeas corpus releasing him fromprison. Supreme Court denied petitioner's application without a hearing, and petitioner now appeals.
Habeas corpus relief is not available when the claims being raised were or could have been [*2]asserted on direct appeal or in a CPL article 440 motion (see People ex rel. Johnson v Fischer, 69AD3d 1100, 1101 [2010], lv denied 14 NY3d 707 [2010]; People ex rel. Chapman v LaClair, 64AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]). Here, the petition, whilevague, alleges various procedural violations or irregularities in the prosecutions underlying one or bothof petitioner's judgments of conviction. As such, the requested relief is not available and we find noreason to depart from existing orderly procedure (see People ex rel. Chapman v LaClair, 64AD3d at 1026-1027; People ex rel. Clark vArtus, 63 AD3d 1455, 1456 [2009]).
Peters, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.