Opinion
89472
Decided and Entered: December 27, 2001.
Appeal from a judgment of the Supreme Court (Hemmett Jr., J.), entered March 28, 2001 in Washington County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
David Burr, Comstock, appellant pro se.
Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.
Before: Mercure, J.P., Crew III, Spain, Mugglin and, Lahtinen, JJ.
MEMORANDUM AND ORDER
Petitioner commenced this proceeding for a writ of habeas corpus asserting that he is unlawfully detained because his certificate of conviction is deficient. We agree with Supreme Court's determination that, inasmuch as petitioner could have advanced this argument either on his direct appeal or by way of a motion pursuant to CPL article 440 in the court of original jurisdiction, habeas corpus is not the proper remedy (see, Matter of Le Bron v. Herbert, 287 A.D.2d 917, 731 N.Y.S.2d 679; People ex rel. Patterson v. Lacy, 276 A.D.2d 961). Moreover, even if petitioner were successful in his argument, he would not be entitled to immediate release from prison (see, Matter of Le Bron v. Herbert, supra). Accordingly, habeas corpus relief is unavailable to petitioner.
Mercure, J.P., Crew III, Spain, Mugglin and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed, without costs.