State of New York Supreme Court, Appellate Division Third Judicial Department
July 1, 2010
THE PEOPLE OF THE STATE OF NEW YORK EX REL. RICARDO JOSEPH, APPELLANT,
DAVID NAPOLI, AS SUPERINTENDENT OF SOUTHPORT CORRECTIONAL FACILITY, ET AL., RESPONDENTS.
MEMORANDUM AND ORDER
Calendar Date: May 12, 2010
Before: Cardona, P.J., Rose, Malone Jr., Stein and Garry, JJ.
Appeal from a judgment of the Supreme Court (Fitzgerald, J.), entered February 27, 2009 in Chemung County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner was convicted of murder in the second degree (two counts) and robbery in the first degree in 2002 and was sentenced to an aggregate term of 30 years to life in prison. Thereafter, in 2007, petitioner was convicted of assault in the second degree and sentenced as a second violent felony offender to a prison term of five years followed by five years of postrelease supervision, to be served consecutively to his 2002 sentence. Alleging that certificates of conviction were not properly executed and filed in the counties in which he was convicted, petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus. The application was denied by Supreme Court and petitioner now appeals.
We affirm. Initially, we note that because petitioner could have raised this argument by way of a CPL article 440 motion or on direct appeal, habeas corpus relief is unavailable (see People ex rel. Brown v Artus, 64 AD3d 1064, 1064 , lv denied 13 NY3d 709 ; People ex rel. Woodard v Lape, 58 AD3d 903, 904 , lv denied 12 NY3d 706 ). In any event, we find the sentence and commitment forms submitted by petitioner to be adequate and, moreover, even if they were inadequate, it still would not render petitioner's sentence and commitment defective (see People ex rel. Haynes v Artus, 51 AD3d 1075 ).
Cardona, P.J., Rose, Malone Jr., Stein and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
© 1992-2010 VersusLaw Inc.