Opinion
218 KAH 17-00592
03-23-2018
THE PEOPLE OF THE STATE OF NEW YORK EX REL. JOHN A.J. HINSPETER, II, PETITIONER-APPELLANT, v. DALE A. ARTUS, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
JOHN A.J. HINSPETER, II, PETITIONER-APPELLANT PRO SE.
PRESENT:
JOHN A.J. HINSPETER, II, PETITIONER-APPELLANT PRO SE.
Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered February 6, 2017 in a habeas corpus proceeding. The judgment denied petitioner's "motion to compel."
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus. His initial petition and a subsequent motion for leave to reargue were denied. He then filed a "motion to compel," which was denied in an order from which he now appeals. Because petitioner "failed to allege any new facts or to demonstrate a change in the law," his motion to compel was in fact a motion to reargue, which has no application to a judgment determining a special proceeding, and from which no appeal lies in any event (People ex rel. Hinton v Graham, 66 AD3d 1402, 1402 [4th Dept 2009], lv denied 13 NY3d 934 [2010], rearg denied 14 NY3d 795 [2010]; see People ex rel. Seals v New York State Dept. of Corr. Servs., 32 AD3d 1262, 1263 [4th Dept 2006]). Moreover, petitioner's substantive claims are not properly raised in a petition for a writ of habeas corpus inasmuch as they "could have been raised on direct appeal or in a proceeding pursuant to CPL article 440" (People ex rel. Frederick v Superintendent, Auburn Corr. Facility, 156 AD3d 1468, 1468 [4th Dept 2017]).
Entered: March 23, 2018
Mark W. Bennett
Clerk of the Court