Opinion
KAH 00-01171
June 14, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Cayuga County (Corning, J.), entered February 18, 2000, which denied the petition for a writ of habeas corpus.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (SUSAN R. RIDER OF COUNSEL), FOR PETITIONER-APPELLANT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI OF COUNSEL), RESPONDENT-RESPONDENT PRO SE, AND FOR RESPONDENT-RESPONDENT HANS WALKER, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY.
PRESENT: PINE, J.P., KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Because petitioner could have raised on direct appeal or pursuant to CPL article 440 his contention that the prosecutor improperly commented on evidence that had been suppressed, habeas corpus is not an appropriate remedy with respect to that contention ( see People ex rel. Paxhia v. Donnelly, 291 A.D.2d 835; People ex rel. Batista v. Walker, 198 A.D.2d 865, lv denied 83 N.Y.2d 752). The remaining contentions in petitioner's appellate brief were not raised in the petition and therefore are not properly before us ( see People ex rel. McWhinney v. Smith, 219 A.D.2d 879; People ex rel. Morgan v. Berry, 149 A.D.2d 752).