| People ex rel. Burr v Rock |
| 2012 NY Slip Op 01714 [93 AD3d 977] |
| March 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. David A. Burr,Appellant, v David Rock, as Superintendent of Upstate Correctional Facility,Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 31, 2011 inFranklin County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
Petitioner is currently serving a prison term of 25 years to life as a result of his conviction ofthe crimes of murder in the second degree and assault in the second degree. His conviction wasaffirmed on appeal (People v Burr, 124 AD2d 5 [1987], affd 70 NY2d 354[1987], cert denied 485 US 989 [1988]). Petitioner commenced this CPLR article 70proceeding seeking a writ of habeas corpus claiming that his arrest was unlawful. Supreme Courtdenied the application without a hearing and petitioner appeals.
We affirm. Habeas corpus relief is not an appropriate remedy for asserting claims that wereor could have been raised on direct appeal or in a CPL article 440 motion, even if they arejurisdictional in nature (see People exrel. Lainfiesta v Lape, 83 AD3d 1303, 1303 [2011], lv denied 17 NY3d 708[2011]; People ex rel. Chapman vLaClair, 64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]). CPL440.10 (1) (a) specifically authorizes a motion to vacate a judgment upon the ground that thecourt did not have jurisdiction of the defendant (compare People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101[2010], lv denied 14 NY3d 707 [2010]). Accordingly, we find no reason to depart fromthe traditional orderly procedure (seePeople ex rel. Purdie v LaValley, 86 AD3d 883, 884 [2011]; People ex rel. Cisson v Artus, 78 AD3d1392, [*2]1393 [2010]).
Peters, J.P., Spain, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.