| People ex rel. Cassar v Margiotta |
| 2017 NY Slip Op 04286 [150 AD3d 1254] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| People of the State of New York ex rel. Christopher Cassar, onBehalf of Jose Medrano, Respondent, v Paul J. Margiotta, Executive Director, SuffolkCounty Traffic and Parking Violation Agency, et al., Appellants. |
Mark A. Cuthbertson, Huntington, NY, for appellants.
Christopher Cassar, P.C., Huntington, NY, for respondent.
In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the appeal is from ajudgment of the Supreme Court, Suffolk County (Cohen, J.), dated May 1, 2015, which, after ahearing, granted the petition and sustained the writ.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is denied, the writ is dismissed, and the petitioner is directed to surrender himself to thesuperintendent of the Suffolk County Correctional Facility.
On April 23, 2015, the petitioner was tried, in absentia, by a hearing officer of the SuffolkCounty Traffic & Parking Violations Agency, on charges of unlicensed operation of a motorvehicle (see Vehicle and Traffic Law § 509 [1]) and operation of a motorvehicle while using a cell phone (see Vehicle and Traffic Law § 1225-c [2][a]). The petitioner was convicted of both offenses and was sentenced to, inter alia, a definitesentence of 15 days' imprisonment.
The next day, on April 24, 2015, the petitioner and his attorney appeared before a differenthearing officer of the Suffolk County Traffic & Parking Violations Agency. The petitionerpleaded guilty to a separate, unrelated, charge of unlicensed operation of a motor vehicle, andwas sentenced to a definite sentence of 10 days' imprisonment to run consecutively to the 15-daysentence imposed on April 23, 2015.
By verified petition dated May 1, 2015, the petitioner commenced this proceeding for a writof habeas corpus for his immediate release on the grounds that, in connection with the April 23,2015, convictions, the hearing officer never warned him that if he did not appear for trial, thetrial would proceed in his absence, and, in connection with the April 24, 2015, conviction, hisplea of guilty was coerced by the hearing officer and the People. By judgment dated May 1, 2015,the Supreme Court granted the petition, sustained the writ, and directed the petitioner'simmediate release. We reverse.
"A person illegally imprisoned or otherwise restrained in his [or her] liberty within the state. . . may petition without notice for a writ of habeas corpus to inquire into the causeof such detention and for deliverance" (CPLR 7002 [a]). In a habeas corpus proceeding, where adefendant is detained pursuant to more than one judgment, he or she must interpose meritoriousclaims with [*2]respect to each judgment to establish entitlementto immediate release (see People ex rel. Benbow v Scully, 189 AD2d 844, 845 [1993];see also People ex rel. Nalo v Sullivan, 120 AD2d 759, 760 [1986]). " 'A writ ofhabeas corpus may not be used for review of issues that have been, or could have been, reviewedon direct appeal or by a postjudgment motion addressed to the court in which an underlyingjudgment of conviction was rendered' " (People ex rel. Lifrieri v Lee, 116 AD3d 720, 720 [2014], quotingPeople ex rel. Dushain v Ercole, 64AD3d 669 [2009]).
Here, the petitioner failed to establish entitlement to immediate release on any of hisconvictions. With respect to his April 23, 2015, convictions, his contention that he wasimproperly tried in absentia may be reviewed on direct appeal, and even if that contention hadmerit, the only relief available would be a new trial (see People v Parker, 57 NY2d 136,142 [1982]; People v Ramos, 207 AD2d 810 [1994]). With respect to his April 24, 2015,conviction, the petitioner's contention that his plea of guilty was involuntary may be reviewed ondirect appeal, and even if that contention had merit, the only relief available would be reversaland vacatur of the plea (see People vGrant, 61 AD3d 177, 184 [2009]).
Contrary to the petitioner's contentions, the allegations in the petition do not warrantdeparture from traditional orderly procedure (see People ex rel. Dushain v Ercole, 64 AD3d 669 [2009]; cf.People ex rel. Chakwin v Warden, N.Y. City Correctional Facility, Rikers Is., 63 NY2d 120[1984]; People ex rel. Keitt v McMann, 18 NY2d 257 [1966]). Since the petitioner wouldnot be entitled to immediate release in connection with any of his convictions, habeas relief doesnot lie (see People ex rel. Douglas v Vincent, 50 NY2d 901, 903 [1980]; People ex rel. Lifrieri v Lee, 116 AD3d720 [2014]; People ex rel. Benbow v Scully, 189 AD2d at 845). Mastro, J.P.,Chambers, Roman and Connolly, JJ., concur.