Opinion
533988
09-22-2022
The PEOPLE of the State of New York EX REL. Blake WINGATE, Appellant, v. State of New York DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES AT SOUTHPORT CORRECTIONAL FACILITY MEDICAL, Respondent.
Blake Wingate, Romulus, appellant pro se. Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Blake Wingate, Romulus, appellant pro se.
Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Aarons and Ceresia, JJ.
MEMORANDUM AND ORDER Appeal from an amended order of the Supreme Court (Richard W. Rich Jr., J.), entered July 26, 2021 in Chemung County, which, among other things, denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is serving a prison term of 14 years upon his 2015 conviction of robbery in the second degree and assault in the second degree ( People v. Wingate, 184 A.D.3d 738, 125 N.Y.S.3d 724 [2d Dept. 2020], lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 401, 152 N.E.3d 1203 [2020] ). In October 2020, petitioner moved by order to show cause seeking, among other things, immediate release from prison via either a writ of habeas corpus pursuant to CPLR article 70 or a CPLR article 78 proceeding in the nature of mandamus to compel. The requested relief stemmed from legal errors that allegedly occurred in the context of his underlying conviction, as well as asserted deficiencies in the medical care provided and the conditions of his confinement at Southport Correctional Facility, where petitioner then was incarcerated. Respondent opposed the requested relief, arguing that neither a writ of habeas corpus nor mandamus to compel lies to address petitioner's claims, and noted that petitioner had been transferred to Five Points Correctional Facility, where he was receiving medical care for various conditions. Following service of petitioner's reply, Supreme Court denied the requested relief. Additional motion practice ensued, and, by amended order entered July 26, 2021, Supreme Court corrected a portion of its original decision and directed that the balance thereof remain in full force and effect. This appeal ensued.
We affirm. "Habeas corpus relief is unavailable where, as here, petitioner's claims were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature" ( People ex rel. Brown v. Tedford, 196 A.D.3d 965, 966, 147 N.Y.S.3d 899 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted], lv denied 37 N.Y.3d 918, 160 N.Y.S.3d 728, 181 N.E.3d 1157 [2022] ; accord People ex rel. Kelsey v. Lewin , 203 A.D.3d 1366, 1367, 160 N.Y.S.3d 916 [3d Dept. 2022], appeal dismissed 38 N.Y.3d 1054, 171 N.Y.S.3d 40, 190 N.E.3d 1172 [2022] ). Petitioner's challenge to the accusatory instrument underlying his criminal conviction could have been raised upon his direct appeal, and the requested writ "may not be utilized as a substitute for appeal or to again review the errors already passed on in an earlier appeal" ( People ex rel. Kelsey v. Lewin, 203 A.D.3d at 1367, 160 N.Y.S.3d 916 [internal quotation marks and citation omitted]). As our review of the record does not reveal "any extraordinary circumstances warranting a departure from traditional orderly procedure," Supreme Court properly denied petitioner's request for habeas corpus relief in this regard ( People ex rel. Brown v. Tedford, 196 A.D.3d at 966, 147 N.Y.S.3d 899 [internal quotation marks and citations omitted]).
To the extent that petitioner's brief may be read as pursuing his medical treatment/environmental complaints relative to Southport Correctional Facility and, further, that such complaints survived his subsequent transfer to another facility, we agree with Supreme Court that petitioner failed to demonstrate his entitlement to immediate release – either via a writ of habeas corpus or mandamus to compel. Neither of these extraordinary remedies is available where other avenues of redress may be pursued (see People ex rel. Tumminia v. Griffin, 118 A.D.3d 1174, 1176, 987 N.Y.S.2d 256 [3d Dept. 2014], lv denied 24 N.Y.3d 907, 2014 WL 5369041 [2014] ; Matter of Schamel v. Board of Educ. of Waverly Cent. School Dist., 61 A.D.2d 1115, 1116, 403 N.Y.S.2d 584 [3d Dept. 1978], lv denied 44 N.Y.2d 649, 408 N.Y.S.2d 1023, 380 N.E.2d 336 [1978] ). As Supreme Court aptly observed, the record is devoid of proof that petitioner utilized – much less exhausted – available grievance procedures to address the claimed deficiencies (see generally Correction Law § 139 ; 7 NYCRR part 701). Petitioner's attempt to circumvent the exhaustion requirement by casting his claim as a constitutional challenge and asserting that resort to administrative relief would be futile is unpersuasive (see Matter of Hakeem v. Wong, 223 A.D.2d 765, 765–766, 636 N.Y.S.2d 440 [3d Dept. 1996], lv denied 88 N.Y.2d 802, 644 N.Y.S.2d 688, 667 N.E.2d 338 [1996] ). Petitioner's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Lynch, Aarons and Ceresia, JJ., concur.
ORDERED that the amended order is affirmed, without costs.