Opinion
2011-04-28
The PEOPLE of the State of New York ex rel. Ricardo ROSADO, Appellant, v. David NAPOLI, as Superintendent of Southport Correctional Facility, Respondent.
Ricardo Rosado, Auburn, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Ricardo Rosado, Auburn, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Fitzgerald, J.), entered April 19, 2010 in Chemung County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
In January 2006, petitioner was convicted of two counts of sodomy in the first degree ( see Penal Law former § 130.50[1] ) and was sentenced as a second felony offender to 20 years in prison followed by five years of postrelease supervision on each count, to be served consecutively. Petitioner's conviction and sentences were affirmed on appeal ( People v. Rosado, 56 A.D.3d 1215, 866 N.Y.S.2d 903 [2008] ). Thereafter, petitioner commenced this CPLR article 70 proceeding, contending that his due process rights and right to be free from ex post facto laws had been violated and that he received ineffective assistance from appellate counsel. Following respondent's return, Supreme Court denied the petition without a hearing and petitioner now appeals.
We affirm. Despite the fact that petitioner raises claims that are jurisdictional in nature because they challenge the validity of the felony complaint, habeas corpus relief is unavailable as petitioner could have raised these claims in his direct appeal or CPL article 440 motions ( see People ex rel. Rivas v. Walsh, 69 A.D.3d 1236, 1236, 893 N.Y.S.2d 388 [2010],lv. denied14 N.Y.3d 712, 2010 WL 2196656 [2010];People ex rel. Spaulding v. Woods, 63 A.D.3d 1456, 1457, 880 N.Y.S.2d 588 [2009] ). In any event, petitioner's arguments lack merit as the complaint was superseded by a valid grand jury indictment on which petitioner was prosecuted and found guilty ( see People ex rel. Van Steenburg v. Wasser, 69 A.D.3d 1135, 1136, 893 N.Y.S.2d 379 [2010],lv. dismissed and denied14 N.Y.3d 883, 903 N.Y.S.2d 338, 929 N.E.2d 401 [2010];People v. Black, 270 A.D.2d 563, 564–565, 705 N.Y.S.2d 696 [2000] ). With regard to petitioner's contention that he received the ineffective assistance of appellate counsel, a common-law coram nobis proceeding initiated in this Court is the proper vehicle to address that claim ( see People v. Adams, 51 A.D.3d 1136, 1136, 857 N.Y.S.2d 789 [2008],lv. denied11 N.Y.3d 784, 866 N.Y.S.2d 611, 896 N.E.2d 97 [2008];People v. Keebler, 15 A.D.3d 724, 728, 789 N.Y.S.2d 547 [2005],lv. denied4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 [2005] ). Consequently, Supreme Court properly dismissed petitioner's application and we find no basis to depart 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] ).
ORDERED that the judgment is affirmed, without costs.