Opinion
529887
11-25-2020
The PEOPLE of the State of New York EX REL. Stacy LASHER, Appellant, v. Theresa TYNON, as Superintendent of Washington Correctional Facility, Respondent.
Stacy Lasher, Comstock, appellant pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Stacy Lasher, Comstock, appellant pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Lynch, Devine, Aarons and Reynolds Fitzgerald, J.J.
MEMORANDUM AND ORDER Appeal from an order of the Supreme Court (McKeighan, J.), entered August 12, 2019 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
In 2017, defendant was convicted upon his guilty plea of burglary in the second degree and is serving a prison sentence of eight years to be followed by five years of postrelease supervision, and the conviction was upheld on direct appeal ( People v. Lasher, 166 A.D.3d 1242, 88 N.Y.S.3d 277 [2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 584, 121 N.E.3d 211 [2019] ). Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus, contending that his detention is illegal based upon prosecutorial misconduct that led to the denial of a preliminary hearing prior to being indicted. Supreme Court dismissed petitioner's application without a hearing, prompting this appeal.
We affirm. "Habeas corpus is not the appropriate remedy for raising claims that could have been raised on direct appeal or in the context of a CPL article 440 motion" ( People ex rel. Dixon v. Superintendent of E. Corr. Facility, 181 A.D.3d 1107, 1107, 118 N.Y.S.3d 450 [2020] [internal quotation marks and citations omitted]; see People ex rel. West v. Coveny, 181 A.D.3d 1141, 1141, 118 N.Y.S.3d 455 [2020] ). We agree with Supreme Court that petitioner's contention regarding prosecutorial misconduct that led to the denial of a preliminary hearing could have been raised on direct appeal or in a motion pursuant to CPL article 440 (see People ex rel. Dixon v. Superintendent of E. Corr. Facility, 181 A.D.3d at 1108, 118 N.Y.S.3d 450 ; People ex rel. Moise v. Coveny, 175 A.D.3d 1693, 1693–1694, 106 N.Y.S.3d 643 [2019], lv denied 34 N.Y.3d 912, 2020 WL 1426725 [2020] ; People ex rel. McCray v. LaClair, 161 A.D.3d 1490, 1491, 77 N.Y.S.3d 768 [2018], lv dismissed and denied 32 N.Y.3d 1143, 92 N.Y.S.3d 181, 116 N.E.3d 665 [2019] ). In fact, the issue of the denial of a preliminary hearing was raised unsuccessfully on direct appeal under a different rubric, as an ineffective assistance of counsel claim ( People v. Lasher, 166 A.D.3d at 1242, 88 N.Y.S.3d 277 ). We have considered petitioner's remaining assertions and discern no extraordinary circumstances warranting a departure from the traditional orderly procedure. Accordingly, we find that Supreme Court properly dismissed petitioner's application (see People ex rel. West v. Coveny, 181 A.D.3d at 1142, 118 N.Y.S.3d 455 ).
According to the petition, petitioner filed a motion pursuant to CPL 440.10 in Schenectady County, which was denied in March 2019; the decision and motion papers are not in the record on appeal. The Attorney General represents that the same issue raised herein was also raised in that proceeding.
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ORDERED that the order is affirmed, without costs.
Garry, P.J., Lynch, Devine, Aarons and Reynolds Fitzgerald, JJ., concur.