| People ex rel. Vickery v Walsh |
| 2012 NY Slip Op 07344 [100 AD3d 1116] |
| November 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Anthony Vickery,Appellant, v Joseph Walsh, as Superintendent of Sullivan Correctional Facility,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered August 24, 2011 inSullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 70, without a hearing.
Petitioner, an inmate, made an application for a writ of habeas corpus alleging variousconstitutional violations and seeking release from prison. Supreme Court signed the writ, whichdirected petitioner to serve the writ and the petition on, among others, respondent and theAttorney General on or before December 3, 2010. Petitioner failed to do so, and the courtsubsequently dismissed the petition on jurisdictional grounds, without a hearing, also noting asan alternative ground for denial that petitioner's arguments could have been raised upon a directappeal from the judgment of conviction or in a collateral motion. Petitioner appeals.
We affirm. There was no showing that petitioner's imprisonment presented an obstaclebeyond his control preventing compliance with the service directives and, thus, dismissal for lackof personal jurisdiction was proper (seePeople ex rel. Watson v Walsh, 7 AD3d 850, 850 [2004]). Further, habeas corpus reliefis unavailable where petitioner could have raised his constitutional claims on direct appeal or in acollateral motion (see People ex rel.Brown v Artus, 64 AD3d 1064, 1064 [2009], lv denied 13 NY3d 709 [2009]).[*2]
Peters, P.J., Rose, Spain, Kavanagh and Garry, JJ.,concur. Ordered that the judgment is affirmed, without costs.