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The People of the State of New York Ex Rel. v. David Rock

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


May 19, 2011

THE PEOPLE OF THE STATE OF NEW YORK EX REL.
ANTHONY TISLON, APPELLANT,
v.
DAVID ROCK, AS SUPERINTENDENT OF GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered February 2, 2010 in Washington 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: April 6, 2011

Before: Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.

In 1998, petitioner was convicted of, among other things, burglary in the second degree and was sentenced as a persistent violent felony offender to 16 years to life in prison. His conviction was thereafter affirmed on appeal (People v Tislon, 279 AD2d 488 [2001], lv denied 96 NY2d 807 [2001]). Petitioner brought the instant proceeding for a writ of habeas corpus asserting that his detention is illegal due to the unconstitutionality of the statute under which he was convicted. Supreme Court denied the petition without a hearing, resulting in this appeal.

We affirm. Habeas corpus relief is unavailable where a claim could have been raised on direct appeal or in a CPL article 440 motion (see People ex rel. Brown v Artus, 64 AD3d 1064, 1064 [2009], lv denied 13 NY3d 709 [2009]; People ex rel. Howard v Rock, 61 AD3d 1230, 1230 [2009], lv denied 13 NY3d 702 [2009]). In view of petitioner's failure to take advantage of the appropriate avenues for asserting his constitutional claim and given the absence of circumstances warranting a departure from traditional orderly procedure, we conclude that Supreme Court properly denied the application (see People re rel. Brown v Artus, 64 AD3d at 1064 [2009]; People ex rel. Silverio v Miller, 283 AD2d 702, 703 [2001]).

Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110519

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