Opinion
2011-08-4
The PEOPLE of the State of New York ex rel. Justo RICHARDS, Appellant,v.Bruce YELICH, as Superintendent of Bare Hill Correctional Facility, Respondent.
Justo Richards, Malone, appellant pro se.
Appeal (transferred to this Court by order of the Court of Appeals) from a judgment of the Supreme Court (Feldstein, J.), entered June 28, 2010 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.
In 1983, petitioner was convicted of murder in the second degree, manslaughter in the first degree and criminal possession of a weapon in the third degree. He was sentenced to concurrent prison terms of 25 years to life on the murder conviction, 8 1/3 to 25 years on the manslaughter conviction and 5 to 15 years on the weapon possession conviction. His judgment of conviction was subsequently affirmed on appeal ( People v. Richards, 112 A.D.2d 957, 492 N.Y.S.2d 637 [1985], lv. denied 66 N.Y.2d 1043, 499 N.Y.S.2d 1040, 489 N.E.2d 1312 [1985] ) and his CPL 440.10 motion to vacate the judgment of conviction was denied. Thereafter, petitioner brought various unsuccessful applications for writs of habeas corpus as well as a writ of error coram nobis in state and federal court ( see United States ex rel. Richards v. Kuhlmann, 1995 WL 116281 [E.D.N.Y.1995]; United States ex rel. Richards v. Bartlett, 1993 WL 372267 [E.D.N.Y.1993]; People ex rel. Richards v. Dalsheim, 60 N.Y.2d 642, 467 N.Y.S.2d 569, 454 N.E.2d 1312 [1983]; People v. Richards, 233 A.D.2d 469, 650 N.Y.S.2d 601 [1996], appeal dismissed 89 N.Y.2d 928, 654 N.Y.S.2d 731, 677 N.E.2d 303 [1996] ). He now brings the instant application for a writ of habeas corpus asserting that his detention is illegal because the trial court lacked jurisdiction to convict him under a repealed statute. Supreme Court declined to issue the writ and denied petitioner's application. This appeal ensued.
We affirm. It is well settled that habeas corpus relief is not an appropriate remedy for resolving issues that could be raised on direct appeal or in a CPL article 440 motion even if such issues are jurisdictional in nature ( see 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]; People ex rel. Howard v. Rock, 61 A.D.3d 1230, 1230, 876 N.Y.S.2d 664 [2009], lv. denied 13 N.Y.3d 702, 2009 WL 2762598 [2009] ). Here, petitioner had the opportunity to raise his present challenge in his prior appeal or in his CPL article 440 motion. In view of this, and given that we perceive no reason to depart from traditional orderly procedure, we find that Supreme Court properly denied his application ( see People ex rel. Moore v. Connolly, 56 A.D.3d 847, 848, 867 N.Y.S.2d 735 [2008], lv. denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 [2009]; People ex rel. Alvarez v. West, 22 A.D.3d 996, 996, 802 N.Y.S.2d 391 [2005], lv. denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791 [2006] ).
ORDERED that the judgment is affirmed, without costs.