Opinion
DOCKET NO. KAH 17-00488
12-10-2018
THE PEOPLE OF THE STATE OF NEW YORK EX REL. TREVOR FREDERICK, PETITIONER-APPELLANT, v. SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
PRESENT:
Appellant having moved for "settled habeas corpus relief" and for other relief on the appeal taken herein from a judgment (denominated order) of the Supreme Court entered in the Office of the Clerk of the County of Cayuga on October 13, 2016, which was determined by an order of this Court entered December 22, 2017,
Now, upon reading and filing the verified affidavit of Trevor Samuel Frederick sworn to September 8, 2018, the documents annexed thereto, and the notice of motion with proof of service thereof, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is denied.
Memorandum: Even if we were to exercise our power under CPLR 103 (c) to convert this motion into a habeas corpus proceeding, we would dismiss the petition inasmuch as "petitioner was previously denied habeas corpus relief based upon the same issues raised in the instant proceeding . . ., and he has made no showing of changed circumstances that would warrant further habeas corpus review" (People ex rel. Spencer v Burge, 307 AD2d 772, 773 [4th Dept 2003]; see CPLR 7003 [b]). Moreover, "the ends of justice will not be served by granting [a writ of habeas corpus]" (CPLR 7003 [b]). Finally, we reject petitioner's remaining contentions, inasmuch as " ‘[h]abeas 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' " (People ex rel. Haddock v Dolce, 149 AD3d 1593, 1593 [4th Dept 2017], lv denied 29 NY3d 917 [2017]).
Entered: December 10, 2018
Mark W. Bennett, Clerk