State of New York Supreme Court, Appellate Division Third Judicial Department
November 12, 2009
THE PEOPLE OF THE STATE OF NEW YORK EX REL. DELROY THORPE, APPELLANT,
J.T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.
MEMORANDUM AND ORDER
Calendar Date: September 30, 2009
Before: Cardona, P.J., Spain, Kane, Malone Jr. and Stein, JJ.
Appeal from a judgment of the Supreme Court (Work, J.), entered July 1, 2008 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner was charged in two indictments with numerous crimes as the result of his involvement in two robberies. The indictments were consolidated and petitioner was convicted in 1998 of robbery in the first degree (three counts), murder in the second degree, attempted robbery in the first degree (two counts) and assault in the first degree. He was sentenced to an aggregate term of 33 years to life in prison. His conviction was later affirmed on appeal (People v Thorpe, 291 AD2d 464 , lv denied 98 NY2d 681 ) and his motion pursuant to CPL 440.10 was denied. Petitioner then brought this application for a writ of habeas corpus. Supreme Court dismissed the application without a hearing and this appeal ensued.
We affirm. It is well settled that habeas corpus relief is unavailable with respect to matters that could have been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Mills v Poole, 55 AD3d 1289, 1290 , lv denied 11 NY3d 712 ; People ex rel. Reyes v State of New York Dept. of Correctional Servs., 288 AD2d 523 , appeal dismissed and lv denied 97 NY2d 720 ). In the case at hand, petitioner's challenge to the sufficiency of the indictments could have been raised on direct appeal and, notably, was raised in the context of his CPL article 440 motion, which was denied. Consequently, Supreme Court properly dismissed his application. Furthermore, we note that petitioner's challenge to the denial of his motion for a subpoena duces tecum is not properly before us as petitioner did not file a notice of appeal from said order (see CPLR 5515 ; see also Hamroff v Hamroff, 35 AD3d 365, 366 ). Petitioner's remaining contentions have been considered and have been found to be without merit.
Cardona, P.J., Spain, Kane, Malone Jr. and Stein, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
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