People ex rel. Hemphill v Rock

2012 NY Slip Op 04056 [95 AD3d 1579]

May 24, 2012

Appellate Division, Third Department

As corrected through Tuesday, October 23, 2012

The People of the State of New York ex rel. John Hemphill,Appellant, v David A. Rock, as Superintendent of Upstate Correctional Facility,Respondent.

—[*1]John Hemphill, Malone, appellant pro se.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 8, 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, an inmate, commenced this CPLR article 70 proceeding seeking a writ of habeascorpus claiming, among other things, that his arrest was unlawful and the underlying indictmentis flawed. Supreme Court denied the application without a hearing. Petitioner appeals, and weaffirm. "Habeas corpus relief is not an appropriate remedy for asserting claims that were or couldhave been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional innature" (People ex rel. Burr v Rock,93 AD3d 977, 977 [2012] [citations omitted]; see People ex rel. Lainfiesta v Lape, 83 AD3d 1303, 1303 [2011],lv denied 17 NY3d 708 [2011]). Inasmuch as no sound reason to depart from traditionalorderly procedure has been presented (see People ex rel. Collins v Billnier, 87 AD3d 1208, 1209 [2011],lv denied 18 NY3d 802 [2011]), we find no basis to disturb the denial of petitioner'sapplication.

Peters, P.J., Spain, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.