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People v. Unger

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


March 20, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. BERNARD PITTS, PETITIONER-APPELLANT,
v.
DAVID UNGER, SUPERINTENDENT, ORLEANS CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered December 28, 2007 in a habeas corpus proceeding. The judgment dismissed the petition.

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.

PRESENT: MARTOCHE, J.P., CENTRA, FAHEY, AND PINE, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum

We reject the contention of petitioner that Supreme Court erred in dismissing his petition for a writ of habeas corpus. Petitioner's contention in support of the petition with respect to double jeopardy could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 (see People ex rel. Pitts v McCoy, 11 AD3d 985, lv denied 4 NY3d 705; People ex rel. Hammock v Meloni, 233 AD2d 929, lv denied 89 NY2d 807). Contrary to petitioner's contentions, the petition was properly dismissed in response to respondent's motion (seeCPLR 404 [a]; see also People ex rel. Goude v La Vallee, 42 AD2d 648), and petitioner was afforded meaningful representation by the attorney assigned to represent him in connection with the habeas corpus petition (see generally People v Benevento, 91 NY2d 708, 712).

20090320

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