Opinion
525800
06-27-2019
The PEOPLE of the State of New York EX REL. Edward GARCIA, Appellant, v. Brandon J. SMITH, as Superintendent of Greene Correctional Facility, Respondent.
Edward Garcia, Jamaica, appellant pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Edward Garcia, Jamaica, appellant pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Devine, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Elliott III, J.), entered August 17, 2017 in Greene County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
In July 2016, petitioner was sentenced to 3½ years in prison, to be followed by three years of postrelease supervision, after pleading guilty to burglary in the second degree. In February 2017, petitioner commenced this proceeding pursuant to CPLR article 70 seeking a writ of habeas corpus alleging prosecutorial misconduct, that the indictment was jurisdictionally defective, that he received ineffective assistance of counsel, that he was denied the right to a speedy trial and that his guilty plea was coerced. Supreme Court dismissed the petition without a hearing, and this appeal ensued.
Inasmuch as petitioner has been released to parole supervision during the pendency of this appeal, the instant proceeding — wherein petitioner seeks the immediate release from custody — is moot (see People ex rel. Kim v. Smith, 156 A.D.3d 1100, 1101, 65 N.Y.S.3d 470 [2017] ; People ex rel. Knoblauch v. Murray, 298 A.D.2d 716, 717, 748 N.Y.S.2d 532 [2002], lv denied 99 N.Y.2d 506, 755 N.Y.S.2d 713, 785 N.E.2d 735 [2003] ). In any event, "it is well settled that habeas corpus relief is not available where, as in this case, the claims advanced by the petitioner could have been raised in a direct appeal or a motion to vacate the conviction pursuant to CPL article 440" ( People ex rel. Knoblauch v. Murray, 298 A.D.2d at 717, 748 N.Y.S.2d 532 ; see People ex rel. McCray v. LaClair, 161 A.D.3d 1490, 1491, 77 N.Y.S.3d 768 [2018], lv dismissed and denied 32 N.Y.3d 1143, 92 N.Y.S.3d 181, 116 N.E.3d 665 [2019] ).
Egan Jr., J.P., Lynch, Clark, Mulvey and Devine, JJ., concur.
ORDERED that the appeal is dismissed, as moot, without costs.