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The People of the State of New York Ex Rel. v. Raymond Cunningham

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


May 16, 2013

THE PEOPLE OF THE STATE OF NEW YORK EX REL.
TIMOTHY WILLIAMS, APPELLANT,
v.
RAYMOND CUNNINGHAM, AS SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY, RESPONDENT.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered May 15, 2012 in Sullivan 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 3, 2013

Before: Peters, P.J., Lahtinen, McCarthy and Garry, JJ.

Petitioner, an inmate currently incarcerated upon his conviction, after a jury trial, of murder in the second degree and attempted murder in the second degree (People v Williams, 88 AD2d 983 [1982], lv denied 57 NY2d 690 [1982]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus claiming that the People failed to secure a lawful indictment. Supreme Court denied the application without a hearing.

Petitioner appeals, and we affirm. Significantly, "habeas corpus relief is not an appropriate remedy for resolving claims that could have been . . . raised on direct appeal or in a post-conviction motion" (People ex rel. Collins v Billnier, 87 AD3d 1208, 1208 [2011], lv denied 18 NY3d 802 [2011] [internal quotation marks and citation omitted]; see People ex rel. Cicio v Rock, 85 AD3d 1468, 1469 [2011]), a situation that prevails even when the claims are ostensibly jurisdictional (see People ex rel. Burr v Rock, 93 AD3d 977, 977 [2012], lv denied 19 NY3d 806 [2012], lv dismissed 19 NY3d 1007 [2012]). Since petitioner has failed to present a sound reason for a departure from orderly procedure (see People ex rel. Hemphill v Rock, 95 AD3d 1579, 1579 [2012]), we perceive no basis to disturb the denial of his application.

Peters, P.J., Lahtinen, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130516

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