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

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


November 15, 2012

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

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 14, 2012 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: September 26, 2012

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

Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that the certificate of conviction and commitment order authorizing the execution of his sentence are defective in that they are inconsistent with the sentencing minutes. Supreme Court denied the petition and we affirm. A review of the documents at issue disclose no deficiency or substantive distinction regarding the indeterminate sentence imposed. Moreover, petitioner would not be entitled to immediate release even if successful and, therefore, habeas corpus is unavailable (see Matter of Frazier v Greene, 10 AD3d 743 [2004]; People ex rel. Burr v Clark, 278 AD2d 938 [2000], lv denied 96 NY2d 707 [2001]).

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

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121115

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