| People ex rel. Lopez v People |
| 2010 NY Slip Op 09601 [79 AD3d 1555] |
| December 30, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Eliot Lopez, Appellant, vThe People of The State of New York et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Pritzker, J.), entered April 5, 2010 in WashingtonCounty, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant toCPLR article 70, without a hearing.
In 1995, petitioner was convicted of six counts of murder in the second degree and was sentencedto an aggregate term of 30 years to life in prison. His convictions were subsequently upheld on appeal(People v Lopez, 262 AD2d 109 [1999], lv denied 93 NY2d 1003 [1999]) and hisCPL article 440 motion was denied, as was his application for federal habeas corpus relief (Lopezv Walker, 239 F Supp 2d 368, 371-375 [2003]). Thereafter, petitioner brought the instantapplication for a writ of habeas corpus pursuant to CPLR article 70. Supreme Court denied theapplication without a hearing, resulting in this appeal.
Petitioner argues that his due process rights were violated because he was not afforded notice ofhis right to testify before the grand jury in accordance with CPL 190.50. However, inasmuch as thisclaim could have been raised on direct appeal or in petitioner's CPL article 440 motion, habeas corpusrelief is not the appropriate remedy (seePeople ex rel. Jackson v Rock, 67 AD3d 1080 [2009], lv denied 14 NY3d 704[2010]; People ex rel. Chapman vLaClair, 64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]). In anyevent, even if the claim had merit, habeas corpus relief is unavailable inasmuch as it would not entitlepetitioner to immediate [*2]release from prison (see People ex rel. Hall v Rock, 71 AD3d1303 [2010], appeal dismissed 14 NY3d 882 [2010], lv denied 15 NY3d 703[2010]; People ex rel. Maye v SchenectadyCounty Ct., 63 AD3d 1471 [2009]). Accordingly, Supreme Court properly deniedpetitioner's application.
Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.