State of New York Supreme Court, Appellate Division Third Judicial Department
May 24, 2012
THE PEOPLE OF THE STATE OF NEW YORK EX REL.
JOSEPH L. ALBERT, APPELLANT,
STEVEN RACETTE, AS SUPERINTENDENT OF ELMIRA CORRECTIONAL FACILITY, RESPONDENT.
Appeal from a judgment of the Supreme Court (Cerio Jr., J.), rendered July 27, 2011 in Chemung 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 4, 2012
Before: Peters, P.J., Lahtinen, Spain, Kavanagh and Garry, JJ.
Following a jury trial, petitioner was convicted of, among other things, depraved indifference murder, and he is currently incarcerated. He now makes the instant application for a writ of habeas corpus seeking to be released from prison asserting that there was insufficient evidence presented at trial to convict him of depraved indifference murder. Supreme Court denied his application without a hearing and this appeal ensued.
It is well settled that a habeas corpus proceeding is not the appropriate avenue for resolving claims, such as this one, that could have been raised on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Riley v Bradt, 91 AD3d 1238 ; People ex rel. Richards v Yelich, 87 AD3d 764, 765 , appeal dismissed, lv denied 17 NY3d 922 ). From our review of the record, we find no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Gonzalez v New York State Dept. of Correctional Servs., 86 AD3d 886, 887 , lv denied 18 NY3d 802 ; People ex rel. Hall v Bradt, 85 AD3d 1422, 1423 ).
Peters, P.J., Lahtinen, Spain, Kavanagh and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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