| People ex rel. Mills v Lempke |
| 2013 NY Slip Op 08755 [112 AD3d 1365] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York ex rel. Richard Mills,Appellant, v John Lempke, Superintendent, Five Points Correctional Facility, et al.,Respondents. |
—[*1] Richard Mills, petitioner-appellant pro se.
Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender,A.J.), entered July 25, 2011 in a habeas corpus proceeding. The judgment denied anddismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: On appeal from a judgment that denied and dismissed the habeascorpus petition, petitioner initially contends that Supreme Court erred in applying thedoctrine of res judicata. Although it appears that the court intended to apply the doctrineof collateral estoppel, and the use of that doctrine would have been proper under thesecircumstances, we agree that the court erred in applying the doctrine of res judicata."Under the doctrine of res judicata, a party may not litigate a claim where a judgment onthe merits exists from a prior action [or proceeding] between the same parties involvingthe same subject matter" (Matterof Hunter, 4 NY3d 260, 269 [2005]). Here, inasmuch as the parties opposingpetitioner in the habeas corpus proceeding are not identical to those opposing him in theresentencing proceeding, the court erred in applying the doctrine of res judicata (seeMatter of Josato, Inc. v Wright, 288 AD2d 384, 385 [2001]; Matter of State ofNew York v Town of Hardenburgh, 273 AD2d 769, 772 [2000]). We neverthelessconclude, however, that the court properly denied and dismissed the petition on themerits.
We reject petitioner's contention that he is unlawfully detained based on the court'sfailure to file an amended order of commitment after resentencing him on one of thecharges of which he was convicted. "Irregularities or defects in an order of commitmentwould not entitle petitioner to immediate release where, as here, there is a valid judgmentof conviction underlying the commitment" (People ex rel. Burr v Clark, 278AD2d 938, 938 [2000], lv denied 96 NY2d 707 [2001]; see People ex rel. Reed vTravis, 12 AD3d 1102, 1103 [2004], lv denied 4 NY3d 704 [2005]).Petitioner's contention that he is unlawfully detained because the court violated his rightto due process in [*2]resentencing him is also unavailing.Even assuming, arguendo, that his right to due process was violated, we conclude thatpetitioner would only be entitled to a new sentencing proceeding, and thus habeas corpusrelief does not lie (see People ex rel. McGourty v Senkowski, 213 AD2d 954,954 [1995], lv denied 85 NY2d 812 [1995]). Petitioner's further contention thatCorrection Law § 601-d and Penal Law § 70.85 are ex post facto laws israised for the first time on appeal and thus is unpreserved for our review and, in anyevent, that contention is without merit (see People v Pruitt, 74 AD3d 1366, 1367 [2010], lvdenied 15 NY3d 855 [2010]).
Petitioner's remaining contentions may be raised on direct appeal or by a motionpursuant to CPL article 440, and thus habeas corpus relief is unavailable with respect tothose contentions (see People exrel. Smith v Burge, 11 AD3d 907, 907-908 [2004], lv denied 4 NY3d701 [2004]; People ex rel. Pittsv McCoy, 11 AD3d 985, 985 [2004], lv denied 4 NY3d 705 [2005]).Present—Smith, J.P., Fahey, Lindley, Valentino and Whalen, JJ.