Opinion
No. 500958.
February 8, 2007.
Appeal from a judgment of the Supreme Court (O'Shea, J.), entered May 3, 2006 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
Donald Walsh, Elmira, appellant pro se.
Andrew M. Cuomo, Attorney General, Binghamton (Carol A. Cocchiola of counsel), for respondent.
Before: Mercure, J.P., Peters, Mugglin, Lahtinen and Kane, JJ.
Petitioner is currently incarcerated, having been convicted in 1993 of various crimes including murder in the second degree. He subsequently made two applications for a writ of habeas corpus alleging that his detention was illegal because no criminal complaint had been filed against him. His applications were denied by orders dated October 25, 2005 and February 13, 2006. Thereafter, petitioner moved to vacate the orders based upon fraud and lack of jurisdiction, and again requested habeas corpus relief. Supreme Court treated the motion as an application for habeas corpus relief and dismissed the petition, giving rise to this appeal.
We affirm. Initially, while petitioner claims that the prior orders should be vacated based upon fraud and lack of jurisdiction ( see CPLR 5015 [a] [3], [4]), he has failed to support these claims with factual allegations warranting vacatur of these orders. As for his request for habeas corpus relief, it is based upon the same ground presented in his prior applications ( see CPLR 7003 [b]), which could have been raised on direct appeal or in a CPL article 440 motion ( see People ex rel. Lee v Cunningham, 28 AD3d 985, 986, lv denied 7 NY3d 706; People ex rel. Wright v Miller, 16 AD3d 746, lv denied 5 NY3d 703). Consequently, Supreme Court properly dismissed the petition.
Ordered that the judgment is affirmed, without costs.