Opinion
218 KAH 17–00592
03-23-2018
The PEOPLE of the State of New York EX REL. John A.J. HINSPETER, II, Petitioner–Appellant, v. Dale A. ARTUS, Superintendent, Attica Correctional Facility, Respondent–Respondent.
JOHN A.J. HINSPETER, II, PETITIONER–APPELLANT PRO SE.
JOHN A.J. HINSPETER, II, PETITIONER–APPELLANT PRO SE.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDERMemorandum:
Petitioner commenced this proceeding seeking a writ of habeas corpus. His initial petition and a subsequent motion for leave to reargue were denied. He then filed a "motion to compel," which was denied in an order from which he now appeals. Because petitioner "failed to allege any new facts or to demonstrate a change in the law," his motion to compel was in fact a motion to reargue, which has no application to a judgment determining a special proceeding, and from which no appeal lies in any event ( People ex rel. Hinton v. Graham, 66 A.D.3d 1402, 1402, 885 N.Y.S.2d 663 [4th Dept. 2009], lv denied 13 N.Y.3d 934, 895 N.Y.S.2d 310, 922 N.E.2d 899 [2010], rearg. denied 14 N.Y.3d 795, 899 N.Y.S.2d 126, 925 N.E.2d 929 [2010] ; see People ex rel. Seals v. New York State Dept. of Corr. Servs., 32 A.D.3d 1262, 1263, 822 N.Y.S.2d 351 [4th Dept. 2006] ). Moreover, petitioner's substantive claims are not properly raised in a petition for a writ of habeas corpus inasmuch as they "could have been raised on direct appeal or in a proceeding pursuant to CPL article 440" ( People ex rel. Frederick v. Superintendent, Auburn Corr. Facility, 156 A.D.3d 1468, 1468, 65 N.Y.S.3d 877 [4th Dept. 2017] ).
It is hereby ORDERED that said appeal is unanimously dismissed without costs.