| People ex rel. Ragland v Bellnier |
| 2011 NY Slip Op 03320 [83 AD3d 1351] |
| April 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Kim Ragland,Appellant, v J.F. Bellnier, as Superintendent of Upstate Correctional Facility,Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 16, 2009 inFranklin County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 2003, petitioner was convicted of burglary in the second degree as well as possession ofburglar's tools and his conviction was later affirmed on appeal (People v Ragland, 36 AD3d 943[2007], lv denied 9 NY3d 925 [2007], cert denied 552 US 1317 [2008]). In 2009,he brought the instant application for a writ of habeas corpus contending that his detention isillegal because the penal statute under which he was convicted is unconstitutional. SupremeCourt denied the application without a hearing. Petitioner appeals.
We affirm. It is well settled that habeas corpus relief is not available where a claim couldhave been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Joseph v Napoli, 75AD3d 669, 669 [2010], lv denied 15 NY3d 711 [2010], cert denied sub nom.Joseph v Griffin, 563 US —, 131 S Ct 2108 [2011]; People ex rel. Malik v State of New York, 58 AD3d 1042, 1043[2009], appeal dismissed 13 NY3d 815 [2009]). Here, petitioner's constitutionalargument could have been raised in his direct appeal, but was not (People v Ragland, 36AD3d at 943-944). Likewise, it does not appear to have been the subject of a CPL article 440motion. Consequently, inasmuch as we perceive no extraordinary circumstances warranting adeparture from traditional orderly procedure (see People ex rel. Franza v Walsh, 76 [*2]AD3d 1160, 1160 [2010], lv denied 15 NY3d 716 [2010];People ex rel. Hayden v Senkowski, 306 AD2d 664, 665 [2003]), we find that SupremeCourt properly denied petitioner's application.
Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs.