Opinion
2012-03-8
The PEOPLE of the State of New York ex rel. David A. BURR, Appellant, v. David ROCK, as Superintendent of Upstate Correctional Facility, Respondent.
David A. Burr, Malone, appellant pro se.
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 A.D.2d 5, 510 N.Y.S.2d 949 [1987], affd. 70 N.Y.2d 354, 520 N.Y.S.2d 739, 514 N.E.2d 1363 [1987], cert. denied 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505 [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 A.D.3d 1303, 1303, 922 N.Y.S.2d 591 [2011], lv. denied 17 N.Y.3d 708, 2011 WL 4030045 [2011]; People ex rel. Chapman v. LaClair, 64 A.D.3d 1026, 1026, 882 N.Y.S.2d 758 [2009], lv. denied 13 N.Y.3d 712, 2009 WL 4017062 [2009] ). CPL 440.10(1)(a) specifically authorizes a motion to vacate a judgment upon the ground that the court did not have jurisdiction of the defendant ( compare People ex rel. Johnson v. Fischer, 69 A.D.3d 1100, 1101, 893 N.Y.S.2d 349 [2010], lv. denied 14 N.Y.3d 707, 2010 WL 1286811 [2010] ). Accordingly, we find no reason to depart from the traditional orderly procedure ( see People ex rel. Purdie v. LaValley, 86 A.D.3d 883, 884, 928 N.Y.S.2d 381 [2011]; People ex rel. Cisson v. Artus, 78 A.D.3d 1392, 1393, 910 N.Y.S.2d 700 [2010] ).
ORDERED that the judgment is affirmed, without costs.