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The People of the State of v. Robert M. Morgenthau

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


December 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK EX REL.
ANTHONY JACKSON, APPELLANT,
v.
ROBERT M. MORGENTHAU, AS DISTRICT ATTORNEY OF NEW YORK COUNTY, ET AL., RESPONDENTS.

Decided and Entered: December 30, 2010

MEMORANDUM AND ORDER

Calendar Date: November 3, 2010

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

Appeal from a judgment of the Supreme Court (Garry, J.), entered February 24, 2009 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2002, petitioner was convicted of robbery in the first degree and criminal possession of a weapon in the second and third degrees and was sentenced as a second violent felony offender to an aggregate prison term of 17 years. That conviction was later affirmed on appeal (People v Jackson, 15 AD3d 221 [2005], lv denied 4 NY3d 854 [2005]). Petitioner thereafter commenced this CPLR article 70 proceeding seeking a writ of habeas corpus. Supreme Court dismissed the application without a hearing and this appeal ensued.

Here, petitioner contends that he was denied certain evidence during the trial and he received the ineffective assistance of counsel. Inasmuch as these claims could have been asserted on petitioner's direct appeal or in a CPL article 440 motion, habeas corpus relief is not appropriate (see People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101 [2010], lv denied 14 NY3d 707 [2010]; People ex rel. Brown v Artus, 64 AD3d 1064 [2009], lv denied 13 NY3d 709 [2009]). Thus, Supreme Court properly dismissed petitioner's application and, under the circumstances, we find no reason to depart from traditional orderly procedure (see People ex rel. Johnson v Fischer, 69 AD3d at 1101; People ex rel. Chapman v LaClair, 64 AD3d 1026, 1026-1027 [2009], lv denied 13 NY3d 712 [2009]).

We have examined petitioner's remaining contentions and have found them to be without merit.

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

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20101230

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