| People ex rel. Morse v Berbary |
| 2012 NY Slip Op 01021 [92 AD3d 1229] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York ex rel. Scott Morse,Appellant, v James L. Berbary, Superintendent, Collins Correctional Facility,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (M.William Boller, A.J.), entered November 16, 2010 in a habeas corpus proceeding. The judgmentdismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus,alleging that his detention was illegal and that he is entitled to immediate release from detentionbecause he did not receive due process when in 1998 he was assessed a level two sex offenderunder the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.).According to petitioner, his initial risk assessment was improper. Thus, he contends that heshould not have been required to comply with SORA's registration requirements and that thecharges stemming from his failure to do so, along with the bail jumping charge "would neverhave existed." Supreme Court properly dismissed the petition. Habeas corpus relief is unavailablehere inasmuch as petitioner could have raised the instant issue on direct appeal or by way of amotion under CPL article 440 (seePeople ex rel. Robinson v Graham, 68 AD3d 1706 [2009], lv denied 14 NY3d706 [2010]). Moreover, petitioner would not be entitled to immediate release from detentioneven if he were to prevail with respect to SORA because the crime of bail jumping is unrelated toSORA (see generally People ex rel. Douglas v Vincent, 50 NY2d 901, 903 [1980]).Finally, we conclude that petitioner was not a member of the class of plaintiffs covered by thestipulation in Doe v Pataki (427 F Supp 2d 398, 402-403 [2006], orders vacated481 F3d 69 [2006]) who were entitled to a redetermination of their risk assessment level.Present—Scudder, P.J., Centra, Peradotto, Lindley and Martoche, JJ.