Opinion
89843
May 2, 2002.
Appeal from a judgment of the Supreme Court (La Buda, J.), entered May 10, 2001 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Jose Hector Lopez, New York City, appellant pro se.
Thomas J. Spota, District Attorney, Riverhead (Mary Catherine Mullen of counsel), and Eliot Spitzer, Attorney General, New York City (Allison Penn of counsel), for respondent.
Before: Crew III, J.P., Peters, Mugglin, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
Petitioner entered a counseled plea of guilty to the charge of murder in the second degree in Suffolk County in 1992. Prior to sentencing, he moved for leave to withdraw his guilty plea, claiming his innocence. County Court (Weissman, J.) denied the motion and sentenced him to a term of 15 years to life in prison. Petitioner's conviction was affirmed on appeal by the Second Department in 1994 (People v. Lopez, 209 A.D.2d 545,lv denied 85 N.Y.2d 911), and his subsequent CPL 440.10 motion was denied in 1996. In February 2001, petitioner filed this habeas corpus petition seeking release from prison, asserting that County Court's acceptance of his guilty plea deprived him of his constitutional right to a jury trial. Supreme Court denied the petition without a hearing, prompting this appeal.
We agree with Supreme Court's determination that, since petitioner could have raised his contention on his prior appeal or CPL 440.10 motion, habeas corpus relief is unavailable (see,People ex rel. Burr v. Duncan, 289 A.D.2d 898, lv denied ___ N.Y.2d ___ [Mar. 14, 2002]; People ex rel. Reyes v. State of New York Dept. of Correctional Servs., 288 A.D.2d 523, appeal dismissed, lv denied 97 N.Y.2d 720; People ex rel. Brown v. Keane, 284 A.D.2d 813). Moreover, even if petitioner's claim were meritorious, he would, at most, be entitled to withdraw his plea of guilty and proceed to trial. The grant of habeas corpus in such circumstances is not appropriate (see, People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648;People ex rel. Burr v. Duncan, supra; People ex rel. Reyes v. State of New York Dept. of Correctional Servs., supra; People ex rel. Brown v. Keane, supra).
In any event, were we to consider petitioner's contention, we would find it to be without merit (see, People ex rel. Wannamaker v. Wallack, 17 A.D.2d 872, 873; People ex rel. Brackett v. Martin, 266 A.D. 939,appeal dismissed 295 N.Y. 888; see also, People v. Hardy, 53 A.D.2d 647, 648).
Crew III, J.P., Peters, Mugglin and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed, without costs.