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People ex rel Landy v. Rock

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DAN LANDY, APPELLANT,
v.
DAVID ROCK, AS SUPERINTENDENT OF GREAT MEADOW 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: March 2, 2009

Before: Mercure, J.P., Rose, Kane, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered May 20, 2008 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, who is serving an aggregate prison term of 20 years to life following his 2003 conviction of, among other things, burglary in the first degree, commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging ineffective assistance of counsel, prosecutorial and judicial misconduct, lack of probable cause for his arrest and the denial of his right to a speedy trial. Petitioner's direct appeal and the denial of his CPL article 440 motion to vacate the judgment of conviction currently are pending in the First Department.

Habeas corpus relief does not lie where, as here, the arguments advanced "would be properly raised by way of a CPL article 440 motion or on [a] pending appeal from the judgment of conviction" (People ex rel. Cano v Kuhlmann, 278 AD2d 632 [2000], lv denied 96 NY2d 707 [2001]; see People ex rel. Malik v State of New York, 58 AD3d 1042, 1043 [2009]; People ex rel. Woodard v Lape, 58 AD3d 903, 904 [2009]). Further, our review of the record reveals no extraordinary circumstances that would warrant a departure from traditional orderly procedure (see People ex rel. Moore v Connolly, 56 AD3d 847, 848 [2008]; People ex rel. Hunter v Buffardi, 15 AD3d 736 [2005]). Accordingly, Supreme Court's judgment is affirmed.

Mercure, J.P., Rose, Kane, Malone Jr. and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090416

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