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Malik v. State

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 22, 2009

IN THE MATTER OF ABDUL-JABBOR MALIK, APPELLANT,
v.
STATE OF NEW YORK, 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: Mercure, J.P., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (O'Shea, J.), entered April 29, 2008 in Chemung 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 for a writ of habeas corpus contending that his conditional release date was improperly calculated and, further, that the statute underlying his conviction for criminal possession of a weapon in the third degree (see Penal Law § 265.02) was unconstitutionally vague. Habeas corpus relief is unavailable where, as here, the contentions advanced could have been remedied by an administrative appeal (see People ex rel. Bariteau v Donelli, 24 AD3d 1065 [2005]) or raised either upon a direct appeal from the judgment of conviction or in the context of a collateral motion (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 the issues raised by petitioner had merit, under the circumstances presented here, habeas corpus relief would be inappropriate as it would not entitle petitioner to immediate release from prison (see People ex rel. King v Bennett, 45 AD3d 1015, 1016 [2007], lv denied 10 NY3d 703 [2008]; People ex rel. Encarnacion v McGinnis, supra). Accordingly, Supreme Court's judgment is affirmed.

Mercure, J.P., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090122

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