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People ex rel Morgan v. Behrle

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 8, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. RICHARD MORGAN, APPELLANT,
v.
PETER BEHRLE, AS SUPERINTENDENT OF GREENE CORRECTIONAL FACILITY, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: November 24, 2008

Before: Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Pulver Jr., J.), entered December 10, 2007 in Greene County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus contending that the warrant used to secure a blood sample from him lacked probable cause. Inasmuch as petitioner could, and apparently did, advance this claim on his direct appeal from the judgment of conviction (People v Morgan, 48 AD3d 703 [2008], lv denied 10 NY3d 962 [2008]), habeas corpus relief does not lie (see People ex rel. Cropper v Taylor, 48 AD3d 852, 853 [2008], lv denied 10 NY3d 710 [2008]; People ex rel. Encarnacion v McGinnis, 2 AD3d 933 [2003], lv denied 1 NY3d 510 [2004]). Moreover, even assuming that petitioner's argument had merit, habeas corpus relief nonetheless would be inappropriate as petitioner would not be entitled to immediate release from prison (see People ex rel. King v Bennett, 45 AD3d 1015, 1016 [2007], lv denied 10 NY3d 703 [2008]). Accordingly, Supreme Court's judgment is affirmed.

Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090108

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