Opinion
2011-04-28
The PEOPLE of the State of New York ex rel. Kim RAGLAND, Appellant, v. J.F. BELLNIER, as Superintendent of Upstate Correctional Facility, Respondent.
Kim Ragland, Dannemora, appellant pro se.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 16, 2009 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.
In 2003, petitioner was convicted of burglary in the second degree as well as possession of burglar's tools and his conviction was later affirmed on appeal ( People v. Ragland, 36 A.D.3d 943, 829 N.Y.S.2d 189 [2007],lv. denied9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899 [2007],cert. denied552 U.S. 1317, 128 S.Ct. 1880, 170 L.Ed.2d 756 [2008] ). In 2009, he brought the instant application for a writ of habeas corpus contending that his detention is illegal because the penal statute under which he was convicted is unconstitutional. Supreme Court denied the application without a hearing. Petitioner appeals.
We affirm. It is well settled that habeas corpus relief is not available where a claim could have been raised on direct appeal or in the context of a CPL article 440 motion ( see People ex rel. Joseph v. Napoli, 75 A.D.3d 669, 669, 903 N.Y.S.2d 273 [2010],lv. denied15 N.Y.3d 711, 2010 WL 4067768 [2010],cert. denied sub nom. Joseph v. Griffin, ––– U.S. ––––, –––S.Ct. ––––, ––– L.Ed.2d –––– [2011];People ex rel. Malik v. State of New York, 58 A.D.3d 1042, 1043, 870 N.Y.S.2d 806 [2009],appeal dismissed13 N.Y.3d 815, 890 N.Y.S.2d 434, 918 N.E.2d 947 [2009] ). Here, petitioner's constitutional argument could have been raised in his direct appeal, but was not ( People v. Ragland, 36 A.D.3d at 943–944, 829 N.Y.S.2d 189). Likewise, it does not appear to have been the subject of a CPL article 440 motion. Consequently, inasmuch as we perceive no extraordinary circumstances warranting a departure from traditional orderly procedure ( see People ex rel. Franza v. Walsh, 76 A.D.3d 1160, 1160, 907 N.Y.S.2d 725 [2010],lv. denied15 N.Y.3d 716, 917 N.Y.S.2d 106, 942 N.E.2d 317 [2010];People ex rel. Hayden v. Senkowski, 306 A.D.2d 664, 665, 759 N.Y.S.2d 914 [2003] ), we find that Supreme Court properly denied petitioner's application.
ORDERED that the judgment is affirmed, without costs.