| People ex rel. Jackson v Chappius |
| 2016 NY Slip Op 01893 [137 AD3d 1447] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York ex rel. BryantJackson, Appellant, v Paul Chappius, as Superintendent of Elmira CorrectionalFacility, et al.,Respondents. |
Bryant Jackson, Elmira, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Hayden, J.), entered April 14, 2015in Chemung County, which denied petitioner's application for a writ of habeas corpus, ina proceeding pursuant to CPLR article 70, without a hearing.
In 2007, following a trial on the severed first count of a 28-count indictmentcharging petitioner with robbery in the first degree, petitioner was convicted of thatcharge and sentenced to a prison term of 20 years to life. The judgment of conviction wasaffirmed on appeal (People vJackson, 61 AD3d 620 [2009], lv denied 13 NY3d 745 [2009]).Thereafter, Supreme Court (Berkman, J.), by order dated July 1, 2010, grantedpetitioner's motion pursuant to CPL 30.30 to dismiss the indictment on speedy trialgrounds. On July 13, 2010, the court issued an order clarifying the July 1, 2010 order,noting that the motion was granted to the extent of dismissing the indictment with respectto counts 2 through 28 and that the robbery conviction as charged in the first count of theindictment stands and the sentence imposed continued.
Petitioner then commenced this CPLR article 70 proceeding for habeas corpus relief,alleging that the initial order dated July 1, 2010 dismissed all counts of the indictment,including the first count, and that Supreme Court (Berkman, J.) was without jurisdictionto issue the July 13, 2010 order, which resentenced petitioner and amounted to doublejeopardy. Supreme Court (Hayden, J.) denied the writ without a hearing and this appealensued.
[*2] We affirm. Supreme Courtproperly dismissed the petition, as habeas corpus relief is an inappropriate remedybecause petitioner could have challenged the July 13, 2010 order on direct appeal (see People ex rel. Littlejohn vGriffin, 133 AD3d 996, 997 [2015]), and any speedy trial violation should havebeen raised on direct appeal from his judgment of conviction (see People ex rel. Koehl vGreene, 21 AD3d 1237, 1237-1238 [2005], lv denied 6 NY3d 702[2005], cert denied 549 US 835 [2006]; People ex rel. Pittman v Yelich, 79 AD3d 1506, 1507[2010]). In any event, any CPL 30.30 speedy trial issue with regard to the first count ofthe indictment was moot following his conviction (see People ex rel. Chakwin vWarden, N.Y. City Correctional Facility, Rikers Is., 63 NY2d 120, 125 [1984]), andthe July 13 order was issued merely to remedy a clerical error (see People v Gammon, 19NY3d 893, 895 [2012]).
Peters, P.J., Garry, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed, without costs.