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The People of the State of New York Ex Rel. David P. Harrington v. Malcolm R. Cully

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 1, 2013

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DAVID P. HARRINGTON,
PETITIONER-APPELLANT,
v.
MALCOLM R. CULLY, SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY,
RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Christopher J. Burns, J.), entered September 16, 2011 in a habeas corpus proceeding.

People v Cully

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on February 1, 2013

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.

The judgment dismissed the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from a judgment dismissing his petition seeking a writ of habeas corpus on the ground that he was denied effective assistance of counsel in connection with his plea of guilty. We affirm. It is well established that a petition for habeas corpus relief is not a proper vehicle for raising a contention of ineffective assistance of counsel (see People ex rel. Hinton v Graham, 66 AD3d 1402, 1402, lv denied 13 NY3d 934, rearg denied 14 NY3d 795). Even assuming, arguendo, that petitioner's contention had merit, we would conclude that petitioner is not entitled to the relief sought, i.e., immediate release (see id.; People ex rel. Smith v Burge, 11 AD3d 907, 908, lv denied 4 NY3d 701; see generally People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648, 649).

Entered: February 1, 2013 Frances E. Cafarell Clerk of the Court

20130201

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