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The People of the State of v. David A. Rock

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


May 24, 2012

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

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 8, 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: April 4, 2012

Before: Peters, P.J., Spain, Malone Jr., McCarthy and Garry, JJ.

Petitioner, an inmate, commenced this CPLR article 70 proceeding seeking a writ of habeas corpus claiming, among other things, that his arrest was unlawful and the underlying indictment is flawed. Supreme Court denied the application without a hearing. Petitioner appeals, and 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 440 motion, even if they are jurisdictional in nature" (People ex rel. Burr v Rock, 93 AD3d 977 [2012] [citations omitted]; see People ex rel. Lainfiesta v Lape, 83 AD3d 1303, 1303 [2011], lv denied 17 NY3d 708 [2011]. Inasmuch as no sound reason to depart from traditional orderly procedure has been presented (see People ex rel. Collins v Billnier, 87 AD3d 1208, 1209 [2011], lv denied 18 NY3d 802 [2011]), we find no basis to disturb the denial of petitioner's application.

Peters, P.J., Spain, Malone Jr., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120524

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