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People ex rel Abdul-Aziz v. Marshall

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 8, 2009

THE PEOPLE, ETC., EX REL. KHALIL ABDUL-AZIZ, F/K/A ROBERT COLLINS, APPELLANT,
v.
LUIS R. MARSHALL, ETC., RESPONDENT.

In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Cohen, J.), entered September 30, 2008, which, without a hearing, denied the petition and dismissed the proceeding.

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.

MARK C. DILLON, J.P., ANITA R. FLORIO, HOWARD MILLER and DANIEL D. ANGIOLILLO, JJ.

(Index No. 08-04095)

DECISION & ORDER

ORDERED that the judgment is affirmed, without costs or disbursements.

"A writ of habeas corpus may not be used for review of issues that have been, or could have been, reviewed on direct appeal or by a postjudgment motion addressed to the court in which an underlying judgment of conviction was rendered" (People ex rel. Dushain v Ercole, 64 AD3d 669, 669; see People ex rel. Barnes v Fischer, 303 AD2d 526). "Further, where, as here, a petitioner presents no fundamental constitutional or statutory claim that was not already reviewed on direct appeal or on his CPL 440.10 motion and would warrant departure from traditional, orderly process the petition is procedurally barred" (People ex rel. Almeyda v Schultz, 18 AD3d 582, 582-583 [internal quotation marks omitted]). Therefore, the Supreme Court properly denied the petition and dismissed the proceeding without conducting a hearing.

DILLON, J.P., FLORIO, MILLER and ANGIOLILLO, JJ., concur.

20091208

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