Opinion
No. 536069
04-20-2023
The People of the State of New York ex rel. Scott Nailor, Appellant, v. Mark W. Rockwood, as Superintendent of Gouverneur Correctional Facility, Respondent.
Scott Nailor, Gouverneur, appellant pro se.
Calendar Date: March 24, 2023
Scott Nailor, Gouverneur, appellant pro se.
Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ.
Appeal from a judgment of the Supreme Court (Mary M. Farley, J.), entered August 23, 2022 in St. Lawrence 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 an aggregate prison term of 25 to 75 years following his 1999 conviction of multiple counts of sodomy in the first degree, sodomy in the second degree and sexual abuse in the second degree (People v Nailor, 268 A.D.2d 695, 696 [3d Dept 2000]). In August 2022, petitioner commenced this habeas corpus proceeding alleging that his continued incarceration is illegal because the indictment under which he was convicted is jurisdictionally defective. Supreme Court declined to issue the writ or an order to show cause, and denied the petition without a hearing. This appeal ensued.
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" (People ex rel. Golston v Kirkpatrick, 153 A.D.3d 1498, 1498-1499 [3d Dept 2017] [internal quotation marks and citations omitted], appeal dismissed 30 N.Y.3d 1031 [2017], lv denied 31 N.Y.3d 903 [2018]; see People ex rel. Brown v Tedford, 196 A.D.3d 965, 966 [3d Dept 2021], lv denied 37 N.Y.3d 918 [2022]). Petitioner's jurisdictional challenge to the indictment could have been raised on direct appeal or in a CPL article 440 motion. "To the extent that petitioner argues that the failure to do so was occasioned by the ineffective assistance of appellate counsel, his remedy for this alleged omission was an application for a writ of error coram nobis" (People ex rel. Jones v Collado, 178 A.D.3d 1265, 1266 [3d Dept 2019]; see People ex rel. DeFreitas v Callado, 172 A.D.3d 1811, 1812 [3d Dept 2019], lv denied 34 N.Y.3d 909 [2020], cert denied ___ U.S. ___, 141 S.Ct. 300 [2020]). As the circumstances here do not reflect any basis to depart from traditional orderly procedure, we discern no basis to disturb Supreme Court's dismissal of petitioner's request for habeas corpus relief (see People ex rel. Smythe v Miller, 182 A.D.3d 894, 894 [3d Dept 2020], appeal dismissed & lv denied 35 N.Y.3d 1056 [2020]; People ex rel. Nailor v Kirkpatrick, 156 A.D.3d 1100, 1100 [3d Dept 2017]; People ex rel. Alvarez v West, 22 A.D.3d 996, 996 [3d Dept 2005], lv denied 6 N.Y.3d 704 [2006]).
Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the judgment is affirmed, without costs.