Opinion
2011-04-28
Kim Ragland, Dannemora, appellant pro se.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 16, 2009 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 2003, petitioner was convicted of burglary in the second degree as well as possession of burglar's tools and his conviction was later affirmed on appeal ( People v. Ragland, 36 A.D.3d 943, 829 N.Y.S.2d 189 [2007],lv. denied9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899 [2007],cert. denied552 U.S. 1317, 128 S.Ct. 1880, 170 L.Ed.2d 756 [2008] ). In 2009, he brought the instant application for a writ of habeas corpus contending that his detention is illegal because the penal statute under which he was convicted is unconstitutional. Supreme Court denied the application without a hearing. Petitioner appeals.
We affirm. It is well settled that habeas corpus relief is not available where a claim could have been raised on direct appeal or in the context of a CPL article 440 motion ( see People ex rel. Joseph v. Napoli, 75 A.D.3d 669, 669, 903 N.Y.S.2d 273 [2010],lv. denied15 N.Y.3d 711, 2010 WL 4067768 [2010],cert. denied sub nom. Joseph v. Griffin, ––– U.S. ––––, –––S.Ct. ––––, ––– L.Ed.2d –––– [2011];People ex rel. Malik v. State of New York, 58 A.D.3d 1042, 1043, 870 N.Y.S.2d 806 [2009],appeal dismissed13 N.Y.3d 815, 890 N.Y.S.2d 434, 918 N.E.2d 947 [2009] ). Here, petitioner's constitutional argument could have been raised in his direct appeal, but was not ( People v. Ragland, 36 A.D.3d at 943–944, 829 N.Y.S.2d 189). Likewise, it does not appear to have been the subject of a CPL article 440 motion. Consequently, inasmuch as we perceive no extraordinary circumstances warranting a departure from traditional orderly procedure ( see People ex rel. Franza v. Walsh, 76 A.D.3d 1160, 1160, 907 N.Y.S.2d 725 [2010],lv. denied15 N.Y.3d 716, 917 N.Y.S.2d 106, 942 N.E.2d 317 [2010];People ex rel. Hayden v. Senkowski, 306 A.D.2d 664, 665, 759 N.Y.S.2d 914 [2003] ), we find that Supreme Court properly denied petitioner's application.
ORDERED that the judgment is affirmed, without costs.