Calendar Date: January 25, 2010
Before: Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ.
Appeal from a judgment of the Supreme Court (Pritzker, J.), entered May 1, 2009 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.
In 2005, petitioner was convicted of multiple crimes, including murder in the first degree, and was sentenced as a second felony offender to a lengthy term of imprisonment having a maximum of life. He appealed his conviction and also brought the instant application pursuant to CPLR article 70 for a writ of habeas corpus. Supreme Court denied the application without a hearing and this appeal ensued.
We affirm. Preliminarily, we have confirmed that petitioner's appeal from his judgment of conviction has been perfected and calendared in the First Department and, consequently, the instant habeas corpus application is not his sole remedy. Significantly, his challenge to the sufficiency of the evidence supporting the indictment could have been raised in his direct appeal or in the context of a CPL article 440 motion (see People ex rel. Thorpe v Smith, 67 AD3d 1135 ; People ex rel. Lee v Cunningham, 28 AD3d 985, 986 , lv denied 7 NY3d 706 ) and, as such, it is not the proper subject of habeas corpus relief. In any event, even if petitioner's claim has merit, habeas corpus relief is unavailable inasmuch as petitioner would not be entitled to immediate release from prison (see People ex rel. Washington v Walsh, 43 AD3d 1217, 1217 , lv denied 9 NY3d 816 ). Therefore, Supreme Court properly denied petitioner's application.
Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
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