Majority
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 31, 2011 in Franklin County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is currently serving a prison term of 25 years to life as a result of his conviction of the crimes of murder in the second degree and assault in the second degree. His conviction was affirmed on appeal (People v Burr, 124 AD2d 5 [1987], affd 70 NY2d 354 [1987], cert denied 485 US 989 [1988]). Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus claiming that his arrest was unlawful. Supreme Court denied the application without a hearing and petitioner appeals.
We affirm. Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature (see People ex rel. Lainfiesta v Lape, 83 AD3d 1303 , 1303 [2011], lv denied 17 NY3d 708 [2011]; People ex rel. Chapman v LaClair, 64 AD3d 1026 , 1026 [2009], lv denied 13 NY3d 712 [2009]). CPL 440.10 (1) (a) specifically authorizes a motion to vacate a judgment upon the ground that the court
Peters, J.E, Spain, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.
Cases cited
- People v. Burr 124 AD2d 5 p. 977
- People v. Burr 70 NY2d 354 p. 977
- People ex rel. Lainfiesta v. Lape 83 AD3d 1303 at 1303 p. 977
- People ex rel. Chapman v. LaClair 64 AD3d 1026 at 1026 p. 977
- People ex rel. Johnson v. Fischer 69 AD3d 1100 at 1101 p. 978
- People ex rel. Cisson v. Artus 78 AD3d 1392 at 1393 p. 978