State of New York Supreme Court, Appellate Division Third Judicial Department
June 25, 2009
THE PEOPLE OF THE STATE OF NEW YORK EX REL. RICKEY CLARK, APPELLANT,
DALE ARTUS, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.
MEMORANDUM AND ORDER
Calendar Date: May 13, 2009
Before: Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 21, 2008 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
In 2004, following a jury trial, petitioner was convicted of burglary in the second degree and possession of burglar's tools and sentenced, as a second violent felony offender, to concurrent prison terms of 15 years and one year, respectively. Petitioner's conviction and sentence were affirmed on appeal (People v Clark, 23 AD3d 673 , lv denied 6 NY3d 832 ), and the subsequent denial of his application for a writ of error coram nobis was also affirmed (People v Clark, 45 AD3d 776 , lv denied 10 NY3d 762 ). Petitioner thereafter commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that, for various reasons, his detainment was illegal. Supreme Court denied the application and this appeal ensued. We now affirm.
Petitioner challenges his conviction on multiple grounds, including that County Court allegedly stated, in an off-the-record colloquy, that the People failed to submit sufficient evidence at his criminal trial to demonstrate that petitioner had committed a crime and that such should have resulted in an acquittal. However, we note that habeas corpus relief is unavailable, inasmuch as the issues now raised could have been raised on petitioner's direct appeal from his judgment of conviction or via a CPL article 440 motion. Moreover, we perceive no reason in this case to depart from the existing orderly procedure (see People ex rel. Moore v Connolly, 56 AD3d 847, 848 , lv denied 12 NY3d 701 ; see also People ex rel. Keitt v McMann, 18 NY2d 257, 262 . Accordingly, Supreme Court did not err in denying the petition (see People ex rel. Moore v Connolly, 56 AD3d at 848; People ex rel. Barnes v Allard, 25 AD3d 893, 894 , lv denied 6 NY3d 714 ).
Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
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