State of New York Supreme Court, Appellate Division Third Judicial Department
November 21, 2012
THE PEOPLE OF THE STATE OF NEW YORK EX REL. ALVIN FULTON, APPELLANT,
THOMAS LAVALLEY, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.
Appeal from a judgment of the Supreme Court (Muller, J.), entered November 3, 2011 in Clinton County, which, in a proceeding pursuant to CPLR article 70, granted respondent's motion to dismiss the petition.
MEMORANDUM AND ORDER
Calendar Date: September 26, 2012
Before: Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ.
Petitioner, who currently is serving a 25-year prison term pursuant to his 2002 conviction of course of sexual conduct against a child in the first degree (People v Fulton, 13 AD3d 1217 , lvs denied 4 NY3d 827, 830, 835 ), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus contending, as in a prior appeal before this Court (see People ex rel. Fulton v Lape, 61 AD3d 1227 , appeal dismissed 13 NY3d 766 , cert denied ___ US ___, 130 S Ct 1291 ), that, among other things, the trial court lacked subject matter jurisdiction over the matter. Respondent moved to dismiss the petition on various grounds and Supreme Court granted the motion, prompting this appeal.
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" (People ex rel. Burr v Rock, 93 AD3d 977, 977 , lv denied 19 NY3d 806  [citations omitted]; see People ex rel. Lainfiesta v Lape, 83 AD3d 1303, 1303 , lv denied 17 NY3d 708 , lv dismissed 19 NY3d 1007 ; People ex rel. Fulton v Lape, 61 AD3d at 1227-1228). Under these circumstances, Supreme Court properly granted respondent's motion to dismiss.
Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger
Clerk of the Court
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