Opinion
June 4, 1998
Appeal from the Supreme Court (Ellison, J.).
Petitioner, an inmate at Southport Correctional Facility in Chemung County, commenced' this habeas corpus proceeding contending, inter alia, that his conviction after retrial of the crimes of burglary in the third degree and criminal mischief in the third degree violated the constitutional prohibition against double jeopardy. Supreme Court dismissed the application and we affirm. Habeas corpus relief is not available to petitioner insofar as the double jeopardy claim could be raised on appeal from his conviction or in a postconviction motion pursuant to CPL article 440 ( see, People ex rel. Murphy v. Leonardo, 179 A.D.2d 848, lv denied 79 N.Y.2d 757; People ex rel. Webb v. Leonardo, 136 A.D.2d 840). Petitioner's remaining contention that Supreme Court relied upon matters outside the record in dismissing the application is without merit and, in any event, would not entitle him to immediate release ( see, People ex rel. Franza v. Stinson, 228 A.D.2d 843, appeal dismissed 88 N.Y.2d 1015).
Cardona, P. J., Mikoll, Crew III, Yesawich Jr. and Graffeo, JJ., concur.
Ordered that the judgment is affirmed, without costs.