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People ex rel Klosin v. Berbary

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


October 2, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. PHILIP KLOSIN, PETITIONER-APPELLANT,
v.
JAMES L. BERBARY, SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (M. William Boller, A.J.), entered March 10, 2008. The judgment dismissed the petition for a writ of habeas corpus.

PRESENT: HURLBUTT, J.P., FAHEY, PERADOTTO, GREEN, AND PINE, JJ.

MEMORANDUM AND ORDER

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

Memorandum

Supreme Court properly dismissed the petition for a writ of habeas corpus. The contentions of petitioner could have been raised on his direct appeal from the judgment of conviction or by way of a CPL 440.10 motion, and thus habeas corpus relief is not available (see People ex rel. Lanfair v Corcoran, 60 AD3d 1351, lv denied 12 NY3d 714; People ex rel. Smith v Burge, 11 AD3d 907, lv denied 4 NY3d 701).

20091002

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