Opinion
536069
04-20-2023
The PEOPLE of the State of New York EX REL. Scott NAILOR, Appellant, v. Mark W. ROCKWOOD, as Superintendent of Gouverneur Correctional Facility, Respondent.
Scott Nailor, Gouverneur, appellant pro se.
Scott Nailor, Gouverneur, appellant pro se.
Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Mary M. Farley, J.), entered August 23, 2022 in St. Lawrence County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is currently serving an aggregate prison term of 25 to 75 years following his 1999 conviction of multiple counts of sodomy in the first degree, sodomy in the second degree and sexual abuse in the second degree ( People v. Nailor, 268 A.D.2d 695, 696, 701 N.Y.S.2d 476 [3d Dept. 2000] ). In August 2022, petitioner commenced this habeas corpus proceeding alleging that his continued incarceration is illegal because the indictment under which he was convicted is jurisdictionally defective. Supreme Court declined to issue the writ or an order to show cause, and denied the petition without a hearing. This appeal ensued.
We affirm. "Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature" ( People ex rel. Golston v. Kirkpatrick, 153 A.D.3d 1498, 1498–1499, 59 N.Y.S.3d 912 [3d Dept. 2017] [internal quotation marks and citations omitted], appeal dismissed 30 N.Y.3d 1031, 69 N.Y.S.3d 202, 91 N.E.3d 1181 [2017], lv denied 31 N.Y.3d 903, 2018 WL 1527970 [2018] ; see People ex rel. Brown v. Tedford, 196 A.D.3d 965, 966, 147 N.Y.S.3d 899 [3d Dept. 2021], lv denied 37 N.Y.3d 918, 2022 WL 402339 [2022] ). Petitioner's jurisdictional challenge to the indictment could have been raised on direct appeal or in a CPL article 440 motion. "To the extent that petitioner argues that the failure to do so was occasioned by the ineffective assistance of appellate counsel, his remedy for this alleged omission was an application for a writ of error coram nobis" ( People ex rel. Jones v. Collado, 178 A.D.3d 1265, 1266, 112 N.Y.S.3d 599 [3d Dept. 2019] ; see People ex rel. DeFreitas v. Callado, 172 A.D.3d 1811, 1812, 100 N.Y.S.3d 779 [3d Dept. 2019], lv denied 34 N.Y.3d 909, 2020 WL 728529 [2020], cert denied ––– U.S. ––––, 141 S.Ct. 300, 208 L.Ed.2d 53 [2020] ). As the circumstances here do not reflect any basis to depart from traditional orderly procedure, we discern no basis to disturb Supreme Court's dismissal of petitioner's request for habeas corpus relief (see People ex rel. Smythe v. Miller, 182 A.D.3d 894, 894, 120 N.Y.S.3d 865 [3d Dept. 2020], appeal dismissed & lv. denied 35 N.Y.3d 1056, 129 N.Y.S.3d 35, 152 N.E.3d 815 [2020] ; People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [3d Dept. 2017] ; People ex rel. Alvarez v. West, 22 A.D.3d 996, 996, 802 N.Y.S.2d 391 [3d Dept. 2005], lv denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791 [2006] ).
Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the judgment is affirmed, without costs.