| People ex rel. Rosado v Napoli |
| 2011 NY Slip Op 03314 [83 AD3d 1347] |
| April 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Ricardo Rosado,Appellant, v David Napoli, as Superintendent of Southport Correctional Facility,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Fitzgerald, J.), entered April 19, 2010 inChemung County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In January 2006, petitioner was convicted of two counts of sodomy in the first degree(see Penal Law former § 130.50 [1]) and was sentenced as a second felonyoffender to 20 years in prison followed by five years of postrelease supervision on each count, tobe served consecutively. Petitioner's conviction and sentences were affirmed on appeal (People v Rosado, 56 AD3d 1215[2008]). Thereafter, petitioner commenced this CPLR article 70 proceeding, contending that hisdue process rights and right to be free from ex post facto laws had been violated and that hereceived ineffective assistance from appellate counsel. Following respondent's return, SupremeCourt denied the petition without a hearing and petitioner now appeals.
We affirm. Despite the fact that petitioner raises claims that are jurisdictional in naturebecause they challenge the validity of the felony complaint, habeas corpus relief is unavailable aspetitioner could have raised these claims in his direct appeal or CPL article 440 motions (see [*2]People ex rel. Rivas v Walsh, 69 AD3d 1236, 1236 [2010],lv denied 14 NY3d 712 [2010]; People ex rel. Spaulding v Woods, 63 AD3d 1456, 1457 [2009]). Inany event, petitioner's arguments lack merit as the complaint was superseded by a valid grandjury indictment on which petitioner was prosecuted and found guilty (see People ex rel. Van Steenburg vWasser, 69 AD3d 1135, 1136 [2010], lv dismissed and denied 14 NY3d 883[2010]; People v Black, 270 AD2d 563, 564-565 [2000]). With regard to petitioner'scontention that he received the ineffective assistance of appellate counsel, a common-law coramnobis proceeding initiated in this Court is the proper vehicle to address that claim (see People v Adams, 51 AD3d1136 [2008], lv denied 11 NY3d 784 [2008]; People v Keebler, 15 AD3d 724, 728 [2005], lv denied 4NY3d 854 [2005]). Consequently, Supreme Court properly dismissed petitioner's application andwe find no basis to depart from traditional orderly procedure (see People ex rel. Franza v Walsh, 76 AD3d 1160, 1160 [2010],lv denied 15 NY3d 716 [2010]).
Mercure, J.P., Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.