Opinion
2012-11-15
The PEOPLE of the State of New York Ex Rel. David A. BURR, Appellant, v. David A. ROCK, as Superintendent of Upstate Correctional Facility, Respondent.
David A. Burr, Auburn, appellant pro se.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 14, 2012 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 commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that the certificate of conviction and commitment order authorizing the execution of his sentence are defective in that they are inconsistent with the sentencing minutes. Supreme Court denied the petition and we affirm. A review of the documents at issue disclose no deficiency or substantive distinction regarding the indeterminate sentence imposed. Moreover, petitioner would not be entitled to immediate release even if successful and, therefore, habeas corpus is unavailable ( see Matter of Frazier v. Greene, 10 A.D.3d 743, 781 N.Y.S.2d 757 [2004];People ex rel. Burr v. Clark, 278 A.D.2d 938, 718 N.Y.S.2d 771 [2000],lv. denied96 N.Y.2d 707, 725 N.Y.S.2d 637, 749 N.E.2d 206 [2001] ).
ORDERED that the judgment is affirmed, without costs.