| People ex rel. Cicio v Rock |
| 2011 NY Slip Op 05386 [85 AD3d 1468] |
| June 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Terry Cicio, Appellant,v David Rock, as Superintendent of Upstate Correctional Facility,Respondent. |
—[*1]
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 30, 2010 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 three counts of robbery in the second degree and wassentenced to consecutive terms of 3½ years in prison, to be followed by three years ofpostrelease supervision. Thereafter, he made motions pursuant to CPL article 440 to vacate thejudgment of conviction and/or set aside the sentence and these motions were denied. He made athird CPL article 440 motion and, while it was pending, brought this proceeding pursuant toCPLR article 70 for a writ of habeas corpus. Supreme Court denied the petition without ahearing. This appeal ensued.
Petitioner's primary contentions are that he was denied the effective assistance of counsel andthe plea agreement was invalid because it included a robbery charge that had been dismissed.Petitioner, however, raised these very claims in his prior CPL article 440 motions. Inasmuch as ahabeas corpus proceeding is not the proper vehicle for raising arguments that could have been orwere raised on direct appeal or in a postconviction motion (see People ex rel. Dixon v Rock, 79 AD3d 1518, 1518 [2010],lv denied 16 NY3d 709 [2011]; People ex rel. Cisson v Artus, 78 AD3d 1392, 1392-1393 [2010]),this CPLR article 70 proceeding is not the proper context within which to raise them. Petitionerfurther asserts that he is entitled to habeas corpus relief due to the sentencing court's delay indeciding his third CPL article 440 motion. [*2]We find thisargument unpersuasive insofar as petitioner could have and did, in fact, raise some of the sameclaims in his prior CPL article 440 motions and, in any event, he would not be entitled toimmediate release if the claims had merit (see People ex rel. Hall v Brown, 74 AD3d 1596 [2010], lvdenied 15 NY3d 710 [2010]; Peopleex rel. Hall v Rock, 71 AD3d 1303, 1304 [2010], appeal dismissed 14 NY3d882 [2010], lv denied 15 NY3d 703 [2010]). In view of the foregoing, Supreme Courtproperly denied the petition.
Mercure, J.P., Spain, Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgmentis affirmed, without costs.