People ex rel. D'Amico v Lilley

2017 NY Slip Op 06574 [153 AD3d 1493]

September 21, 2017

Appellate Division, Third Department

As corrected through Wednesday, November 1, 2017

[*1]

The People of the State of New York ex rel. Gino D'Amico,Appellant, v Lynn J. Lilley, as Superintendent of Woodbourne Correctional Facility,Respondent.

Gino D'Amico, Woodbourne, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered August 11, 2016 inSullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 70, without a hearing.

In 1997, petitioner was convicted of assault in the first degree (three counts), criminalpossession of a dangerous weapon in the first degree and other crimes and was sentenced to,among other terms, consecutive prison terms of 121/2 to 25 years for each assaultand criminal possession of a dangerous weapon in the first degree conviction. On appeal, theconvictions were affirmed, but the sentence was modified by ordering that the terms ofimprisonment for the assault convictions all run concurrently with one another, rather thanconsecutively, and the remaining sentences were left undisturbed (People v D'Amico, 296AD2d 579 [2002], lv denied 99 NY2d 534 [2002]). His petition for a writ of error coramnobis was thereafter rejected (People vD'Amico, 31 AD3d 782 [2006], lv denied 7 NY3d 924 [2006]). As a result,petitioner is currently serving an aggregate prison term of 20 to 40 years (see Penal Law§ 70.30 [1] [e] [i], [iv]). Petitioner subsequently instituted a variety of unsuccessfulpostconviction proceedings challenging his convictions and sentences and seeking a writ ofhabeas corpus premised upon a claim of ineffective assistance of appellate counsel (D'Amicov Miller, 2012 WL 2188392, 2012 US Dist LEXIS 82989 [SD NY, June 14, 2012, No.09-CV-4571 (CS) (GAY)]). Petitioner commenced this CPLR article 70 proceeding for a writ ofhabeas corpus premised upon the claim [*2]that his remainingconsecutive prison sentences are unlawful and were illegally imposed based upon factualfindings made in violation of Apprendi v New Jersey (530 US 466 [2000]). SupremeCourt dismissed the petition, and petitioner now appeals.

Supreme Court properly dismissed the petition, as "habeas corpus relief is not an appropriateremedy for resolving claims that could have been or that were raised on direct appeal or in apostconviction motion" (People ex rel.Latta v Martuscello, 140 AD3d 1421, 1421 [2016] [internal quotation marks and citationomitted], lv denied 28 NY3d 904 [2016]; see People ex rel. Jackson v Chappius, 137 AD3d 1447, 1448[2016], lv denied 27 NY3d 907 [2016]). Petitioner's contentions regarding his sentencewere or could have been raised on his direct appeal and in his CPL article 440 motions to vacatethe judgment and sentence (see Peopleex rel. Chaney v Dagostino, 140 AD3d 1481, 1481 [2016]).^[FN*] In addition, even if petitioner's claims weredetermined to have merit and his sentences were to run concurrently, he would not be entitled toimmediate release from prison and, consequently, habeas relief is not appropriate (see People ex rel. Rodriguez v Miller,150 AD3d 1500, 1500-1501 [2017]; People ex rel. Carter v Smith, 134 AD3d 1338, 1338 [2015],appeal dismissed 26 NY3d 1138 [2016]). To that end, it is the expiration of themaximum sentence, and not the conditional release date, that is required to establishentitlement to release in a habeas corpus proceeding, and petitioner has not yet reachedthe maximum expiration of his sentences even if they were concurrent (see People ex rel. Justice v Racette,111 AD3d 1041, 1042 [2013], lv denied 22 NY3d 861 [2014]; People ex rel. D'Adamo v Artus, 61AD3d 1263, 1263 [2009]; Peopleex rel. Richardson v West, 24 AD3d 996, 997 [2005]; People ex rel. Mabery vLeonardo, 177 AD2d 766, 767 [1991], lv denied 79 NY2d 753 [1992]).

Peters, P.J., Garry, Lynch, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed, without costs.

Footnote *:Notably, Apprendi v NewJersey (supra) was decided in 2000, prior to petitioner's direct appeal in 2002.