People ex rel. Richards v Yelich

2011 NY Slip Op 06153 [87 AD3d 764]

August 4, 2011

Appellate Division, Third Department

As corrected through Wednesday, September 28, 2011

The People of the State of New York ex rel. Justo Richards,Appellant, v Bruce Yelich, as Superintendent of Bare Hill Correctional Facility,Respondent.

—[*1]Justo Richards, Malone, appellant pro se.

Appeal (transferred to this Court by order of the Court of Appeals) from a judgment of theSupreme Court (Feldstein, J.), entered June 28, 2010 in Franklin County, which deniedpetitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70,without a hearing.

In 1983, petitioner was convicted of murder in the second degree, manslaughter in the firstdegree and criminal possession of a weapon in the third degree. He was sentenced to concurrentprison terms of 25 years to life on the murder conviction, 81/3 to 25 years on themanslaughter conviction and 5 to 15 years on the weapon possession conviction. His judgment ofconviction was subsequently affirmed on appeal (People v Richards, 112 AD2d 957[1985], lv denied 66 NY2d 1043 [1985]) and his CPL 440.10 motion to vacate thejudgment of conviction was denied. Thereafter, petitioner brought various unsuccessfulapplications for writs of habeas corpus as well as a writ of error coram nobis in state and federalcourt (see United States ex rel. Richards v Kuhlmann, 1995 WL 116281 [ED NY 1995];United States ex rel. Richards v Bartlett, 1993 WL 372267, 1993 US Dist LEXIS 12743[ED NY 1993]; People ex rel. Richards v Dalsheim, 60 NY2d 642 [1983]; People vRichards, 233 AD2d 469 [1996], appeal dismissed 89 NY2d 928 [1996]). He nowbrings the instant application for a writ of habeas corpus asserting that his detention is illegalbecause the trial court lacked jurisdiction to convict him under a repealed statute. Supreme Courtdeclined to issue the writ and denied petitioner's application. This appeal ensued.

We affirm. It is well settled that habeas corpus relief is not an appropriate remedy for [*2]resolving issues that could be raised on direct appeal or in a CPLarticle 440 motion even if such issues are jurisdictional in nature (see People ex rel. Chapman v LaClair,64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]; People ex rel. Howard v Rock, 61AD3d 1230, 1230 [2009], lv denied 13 NY3d 702 [2009]). Here, petitioner had theopportunity to raise his present challenge in his prior appeal or in his CPL article 440 motion. Inview of this, and given that we perceive no reason to depart from traditional orderly procedure,we find that Supreme Court properly denied his application (see People ex rel. Moore v Connolly, 56 AD3d 847, 848 [2008],lv denied 12 NY3d 701 [2009]; People ex rel. Alvarez v West, 22 AD3d 996, 996 [2005], lvdenied 6 NY3d 704 [2006]).

Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.