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The People of the State of v. David Rock

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


March 8, 2012

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DAVID A. BURR, APPELLANT,
v.
DAVID ROCK, AS SUPERINTENDENT OF UPSTATE CORRECTIONAL FACILITY, RESPONDENT

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 31, 2011 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: January 23, 2012

Before: Peters, J.P., Spain, Stein, Garry and Egan Jr., JJ.

Petitioner is currently serving a prison term of 25 years to life as a result of his conviction of the crimes of murder in the second degree and assault in the second degree. His conviction was affirmed on appeal (People v Burr, 124 AD2d 5 [1987], affd 70 NY2d 354 [1987], cert denied 485 US 989 [1988]). Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus claiming that his arrest was unlawful. Supreme Court denied the application without a hearing and petitioner appeals.

We affirm. Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature (see People ex rel. Lainfiesta v Lape, 83 AD3d 1303, 1303 [2011], lv denied 17 NY3d 708 [2011]; People ex rel. Chapman v LaClair, 64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]). CPL 440.10 (1) (a) specifically authorizes a motion to vacate a judgment upon the ground that the court did not have jurisdiction of the defendant (compare People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101 [2010], lv denied 14 NY3d 707 [2010]). Accordingly, we find no reason to depart from the traditional orderly procedure (see People ex rel. Purdie v LaValley, 86 AD3d 883, 884 [2011]; People ex rel. Cisson v Artus, 78 AD3d 1392, 1393 [2010]).

Peters, J.P., Spain, Stein, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120308

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