Opinion
09-21-2017
The PEOPLE of the State of New York ex rel. Gino D'AMICO, Appellant, v. Lynn J. LILLEY, as Superintendent of Woodbourne Correctional Facility, Respondent.
Gino D'Amico, Woodbourne, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondent.
Gino D'Amico, Woodbourne, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondent.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered August 11, 2016 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
In 1997, petitioner was convicted of assault in the first degree (three counts), criminal possession of a dangerous weapon in the first degree and other crimes and was sentenced to, among other terms, consecutive prison terms of 12 ½ to 25 years for each assault and criminal possession of a dangerous weapon in the first degree conviction. On appeal, the convictions were affirmed, but the sentence was modified by ordering that the terms of imprisonment for the assault convictions all run concurrently with one another, rather than consecutively, and the remaining sentences were left undisturbed ( People v. D'Amico, 296 A.D.2d 579, 745 N.Y.S.2d 722 [2002], lv. denied 99 N.Y.2d 534, 752 N.Y.S.2d 595, 782 N.E.2d 573 [2002] ). His petition for a writ of error coram nobis was thereafter rejected ( People v. D'Amico, 31 A.D.3d 782, 818 N.Y.S.2d 481 [2006], lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995 [2006] ). As a result, petitioner is currently serving an aggregate prison term of 20 to 40 years (see Penal Law § 70.30[1][e][i], [iv] ). Petitioner subsequently instituted a variety of unsuccessful postconviction proceedings challenging his convictions and sentences and seeking a writ of habeas corpus premised upon a claim of ineffective assistance of appellate counsel ( D'Amico v. Miller, 2012 WL 2188392, 2012 U.S. Dist. LEXIS 82989 [S.D.N.Y. June 14, 2012] ). Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus premised upon the claim that his remaining consecutive prison sentences are unlawful and were illegally imposed based upon factual findings made in violation of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Supreme Court dismissed the petition, and petitioner now appeals.
Supreme Court properly dismissed the petition, as "habeas corpus relief is not an appropriate remedy for resolving claims that could have been or that were raised on direct appeal or in a postconviction motion" ( People ex rel. Latta v. Martuscello, 140 A.D.3d 1421, 1421, 32 N.Y.S.3d 517 [2016] [internal quotation marks and citation omitted], lv. denied 28 N.Y.3d 904, 2016 WL 6111806 [2016] ; see People ex rel. Jackson v. Chappius, 137 A.D.3d 1447, 1448, 27 N.Y.S.3d 737 [2016], lv. denied 27 N.Y.3d 907, 2016 WL 3083912 [2016] ). Petitioner's contentions regarding his sentence were or could have been raised on his direct appeal and in his CPL article 440 motions to vacate the judgment and sentence (see People ex rel. Chaney v. Dagostino, 140 A.D.3d 1481, 1481, 33 N.Y.S.3d 770 [2016] ). In addition, even if petitioner's claims were determined to have merit and his sentences were to run concurrently, he would not be entitled to immediate release from prison and, consequently, habeas relief is not appropriate (see People ex rel. Rodriguez v. Miller, 150 A.D.3d 1500, 1500–1501, 52 N.Y.S.3d 237 [2017] ; People ex. rel. Carter v. Smith, 134 A.D.3d 1338, 1338, 20 N.Y.S.3d 920 [2015], appeal dismissed 26 N.Y.3d 1138, 27 N.Y.S.3d 501, 47 N.E.3d 781 [2016] ). To that end, it is the expiration of the maximum sentence, and not the conditional release date, that is required to establish entitlement to release in a habeas corpus proceeding, and petitioner has not yet reached the maximum expiration of his sentences even if they were concurrent (see People ex rel. Justice v. Racette, 111 A.D.3d 1041, 1042, 975 N.Y.S.2d 781 [2013], lv. denied 22 N.Y.3d 861, 2014 WL 593181 [2014] ; People ex rel. D'Adamo v. Artus, 61 A.D.3d 1263, 1263, 876 N.Y.S.2d 912 [2009] ; People ex rel. Richardson v. West, 24 A.D.3d 996, 997, 806 N.Y.S.2d 276 [2005] ; People ex rel. Mabery v. Leonardo, 177 A.D.2d 766, 767, 575 N.Y.S.2d 745 [1991], lv. denied 79 N.Y.2d 753, 581 N.Y.S.2d 281, 589 N.E.2d 1263 [1992] ).
Notably, Apprendi v. New Jersey (supra ) was decided in 2000, prior to petitioner's direct appeal in 2002.
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ORDERED that the judgment is affirmed, without costs.
PETERS, P.J., GARRY, LYNCH, CLARK and RUMSEY, JJ., concur.