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People ex re Cisson v. Artus

State of New York Supreme Court, Appellate Division Third Judicial Department


November 18, 2010

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JEROME T. CISSON, APPELLANT,
v.
DALE ARTUS, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 29, 2010

Before: Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Muller, J.), entered December 14, 2009 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2008, petitioner was convicted of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. He was sentenced to an aggregate prison term of eight years, to be followed by three years of postrelease supervision. Petitioner subsequently made a number of motions to vacate the judgment of conviction and to set aside the sentence, and also appealed the judgment of conviction. Thereafter, he commenced this proceeding pursuant to CPLR article 70 for a writ of habeas corpus. Supreme Court denied the petition without a hearing and this appeal ensued.

We affirm. "It is well settled that habeas corpus relief is unavailable in cases where an issue could have been raised on direct appeal or in the context of a CPL article 440 motion" (People ex rel. Berry v LaClair, 65 AD3d 1428, 1428 [2009] [citations omitted]; see People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101 [2010], lv denied 14 NY3d 707 [2010]; People ex rel. Jackson v Rock, 67 AD3d 1080 [2009], lv denied 14 NY3d 704 [2010]). In support of the instant application, petitioner asserts, among other things, that the indictment was defective, the search warrant was issued without probable cause and the verdict was not supported by sufficient evidence. Inasmuch as these claims could have been or were raised in petitioner's motions or his direct appeal, he is not entitled to habeas corpus relief. Under the circumstances presented, we find no reason to deviate from traditional orderly procedure (see People ex rel. Moore v Connolly, 56 AD3d 847, 848 [2008], lv denied 12 NY3d 701 [2009]; People ex rel. Landy v Rock, 61 AD3d 1198 [2009], lv denied 13 NY3d 702 [2009]).

Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20101118

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