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.
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 , lv denied 96 NY2d 807 ). 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 , lv denied 13 NY3d 709 ; People ex rel. Howard v Rock, 61 AD3d 1230, 1230 , lv denied 13 NY3d 702 ). 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 ; People ex rel. Silverio v Miller, 283 AD2d 702, 703 ).
Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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