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The People of the State of v. Bruce Yelich

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


December 23, 2010

THE PEOPLE OF THE STATE OF NEW YORK EX REL.
DANYELL L. PITTMAN, APPELLANT,
v.
BRUCE YELICH, AS SUPERINTENDENT OF BEAR HILL CORRECTIONAL FACILITY, RESPONDENT.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 6, 2010 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

MEMORANDUM AND ORDER

Calendar Date: November 3, 2010

Before: Cardona, P.J., Rose, Lahtinen, Stein and McCarthy, JJ.

In January 2008, petitioner pleaded guilty to criminal possession of a controlled substance in the third degree and was sentenced as a second drug felony offender to five years in prison followed by one year of postrelease supervision. Petitioner failed to file a timely appeal from his judgment of conviction and his motion for an extension of time to file an appeal was denied. Thereafter, petitioner moved to vacate his judgment of conviction pursuant to CPL 440.10 and Herkimer County Court (Kirk, J.) issued a written order denying the motion, without a hearing, and the Fourth Department denied permission to appeal from that order. Petitioner then commenced this proceeding pursuant to CPLR article 70 for a writ of habeas corpus seeking to be released from prison. Supreme Court denied petitioner's application without a hearing, and this appeal ensued.

In support of his application, petitioner contends that he was denied his constitutional right to a speedy trial and that he received ineffective assistance of counsel. Because these claims could have been raised on direct appeal and were, in fact, raised in petitioner's unsuccessful CPL article 440 motion, habeas corpus relief is unavailable (see People ex rel. Johnson v Fischer, 69 AD3d 1100 [2010], lv denied 14 NY3d 707 [2010]; People ex rel. Chapman v LaClair, 64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]). Furthermore, we find the circumstances present no reason to depart from traditional orderly procedure (see People ex rel. Chapman v LaClair, 64 AD3d at 1026-1027; People ex rel. Clark v Artus, 63 AD3d 1455, 1456 [2009]).

Cardona, P.J., Rose, Lahtinen, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20101223

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