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The People of the State of v. J.F. Bellnier

April 28, 2011

THE PEOPLE OF THE STATE OF NEW YORK EX REL. KIM RAGLAND, APPELLANT,
v.
J.F. BELLNIER, AS SUPERINTENDENT OF UPSTATE CORRECTIONAL FACILITY, RESPONDENT.



Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 16, 2009 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: February 28, 2011

Before: Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

In 2003, petitioner was convicted of burglary in the second degree as well as possession of burglar's tools and his conviction was later affirmed on appeal (People v Ragland, 36 AD3d 943 [2007], lv denied 9 NY3d 925 [2007], cert denied 552 US 1317 [2008]). In 2009, he brought the instant application for a writ of habeas corpus contending that his detention is illegal because the penal statute under which he was convicted is unconstitutional. Supreme Court denied the application without a hearing. Petitioner appeals.

We affirm. It is well settled that habeas corpus relief is not available where a claim could have been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Joseph v Napoli, 75 AD3d 669, 669 [2010], lv denied 15 NY3d 711 [2010], cert denied sub nom. Joseph v Griffin, ___ US ___ [Apr. 18, 2011]; People ex rel. Malik v State of New York, 58 AD3d 1042, 1043 [2009], appeal dismissed 13 NY3d 815 [2009]). Here, petitioner's constitutional argument could have been raised in his direct appeal, but was not (People v Ragland, 36 AD3d at 943-944). Likewise, it does not appear to have been the subject of a CPL article 440 motion. Consequently, inasmuch as we perceive no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Franza v Walsh, 76 AD3d 1160, 1160 [2010], lv denied 15 NY3d 716 [2010]; People ex rel. Hayden v Senkowski, 306 AD2d 664, 665 [2003]), we find that Supreme Court properly denied petitioner's application.

Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110428

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