Opinion
2015-02-6
The PEOPLE of the State of New York ex rel. Tommy JACKSON, Petitioner–Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent–Respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), dated September 9, 2013 in a habeas corpus proceeding. The judgment denied the petition. Wyoming County–Attica Legal Aid Bureau, Warsaw (Norman P. Effman of Counsel), for Petitioner–Appellant. Tommy Jackson, Petitioner–Appellant Pro Se.
Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), dated September 9, 2013 in a habeas corpus proceeding. The judgment denied the petition.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Norman P. Effman of Counsel), for Petitioner–Appellant. Tommy Jackson, Petitioner–Appellant Pro Se.
MEMORANDUM:
Petitioner commenced this proceeding pursuant to CPLR article 70 seeking habeas corpus relief. Petitioner alleged that his imprisonment is unlawful on the grounds that the persistent felony offender statutes (Penal Law § 70.10; CPL 400.20) violate the United States and New York State Constitutions, and that he was denied effective assistance of counsel with respect to a prior conviction. As a preliminary matter, we note that petitioner's challenge to the constitutionality of the statutes was made without the requisite notice to the Attorney General ( see People v. Korber, 89 A.D.3d 1543, 1543–1544, 932 N.Y.S.2d 780, lv. denied 19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436). In any event, Supreme Court properly denied the petition without a hearing. The allegations raised in the petition either have been, or could have been, raised in prior appeals or in motions pursuant to CPL article 440 ( see People v. Jackson, 119 A.D.3d 1346, 1347, 989 N.Y.S.2d 555; People v. Jackson, 71 A.D.3d 1457, 1458, 896 N.Y.S.2d 756, lv. dismissed in part and denied in part 17 N.Y.3d 774, 929 N.Y.S.2d 76, 952 N.E.2d 1070; People v. Jackson, 262 A.D.2d 1031, 1031–1032, 693 N.Y.S.2d 378, lv. denied 94 N.Y.2d 881, 705 N.Y.S.2d 13, 726 N.E.2d 490). Thus, habeas corpus relief is not available ( see People ex rel. Tuszynski v. Stallone, 117 A.D.3d 1472, 1472, 984 N.Y.S.2d 623, lv. denied 23 N.Y.3d 908, 2014 WL 2936835; People ex rel. Lanfair v. Corcoran, 60 A.D.3d 1351, 1351, 876 N.Y.S.2d 257, lv. denied 12 N.Y.3d 714, 2009 WL 1773138).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. SCUDDER, P.J., SMITH, VALENTINO, WHALEN, and DeJOSEPH, JJ., concur.