Summary
Affirming an order of the Chemung County Court, dated September 23, 2010, dismissing Plaintiff's petition under New York CPLR Article 70 collaterally attacking his convictions, filed after an unsuccessful direct appeal and an unsuccessful 440.10 motion
Summary of this case from Roman v. McKoyOpinion
2011-11-10
The PEOPLE of the State of New York ex rel. Orlando O. ROMAN, Appellant,v.Patrick GRIFFIN, as Superintendent of Southport Correctional Facility, Respondent.
Orlando O. Roman, Pine City, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Hayden, J.), entered September 23, 2010 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
In 2004, petitioner was convicted of several crimes, including rape in the first degree, and was sentenced as a violent felony offender to an aggregate prison term of 17 years, followed by five years of postrelease supervision. That conviction was later affirmed on appeal, with postrelease supervision reduced to three years ( People v. Roman, 43 A.D.3d 1282, 842 N.Y.S.2d 640 [2007], lv. denied 9 N.Y.3d 1009, 850 N.Y.S.2d 397, 880 N.E.2d 883 [2007] ). Subsequently, petitioner pleaded guilty to bribing a witness and was sentenced to a concurrent prison term of 2 1/3 to 7 years, which was also affirmed on appeal ( People v. Roman, 43 A.D.3d 1275, 841 N.Y.S.2d 922 [2007], lv. denied 9 N.Y.3d 1009, 850 N.Y.S.2d 397, 880 N.E.2d 883 [2007] ). Petitioner then commenced this CPLR article 70 proceeding seeking a writ of habeas corpus. Supreme Court dismissed the application without a hearing and petitioner now appeals.
We affirm. Petitioner contends that, based upon evidence newly discovered after his conviction by trial, concerns were raised about the veracity of certain key witnesses that would have precluded a grand jury from indicting him or his having been found guilty after trial. However, where claims could have been asserted on direct appeal or in a CPL article 440 motion, habeas corpus relief is not an appropriate remedy ( see People ex rel. Hall v. Bradt, 85 A.D.3d 1422, 1422, 924 N.Y.S.2d 861 [2011]; People ex rel. Jackson v. Morgenthau, 79 A.D.3d 1540, 1540, 912 N.Y.S.2d 918 [2010], lv. denied 16 N.Y.3d 711, 923 N.Y.S.2d 416, 947 N.E.2d 1195 [2011] ). Here, Supreme Court properly dismissed the petition inasmuch as petitioner acknowledges that the alleged newly discovered evidence was the basis for an unsuccessful motion made pursuant to CPL 440.10(1)(g). As such, we find no reason to depart from traditional orderly procedure ( see People ex rel. Ragland v. Bellnier, 83 A.D.3d 1351, 1352, 920 N.Y.S.2d 919 [2011], lv. denied 17 N.Y.3d 706, 929 N.Y.S.2d 97, 952 N.E.2d 1092 [2011]; People ex rel. Rosado v. Napoli, 83 A.D.3d 1347, 1348, 920 N.Y.S.2d 922 [2011], lv. denied 17 N.Y.3d 710, 930 N.Y.S.2d 555, 954 N.E.2d 1181 [2011] ).
ORDERED that the judgment is affirmed, without costs.
PETERS, J.P., ROSE, MALONE JR., STEIN and GARRY, JJ., concur.