THE PEOPLE OF THE STATE OF NEW YORK ex rel. JASON CATO, Appellant,
JEFFREY TEDFORD, as Superintendent of Washington Correctional Facility, Respondent.
Calendar Date: June 6, 2013
Jason Cato, Elmira, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Lahtinen, J.P., McCarthy, Spain and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (McKeighan, J.), entered May 25, 2012 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
In 2001, petitioner was sentenced to an aggregate prison term of 8½ to 17 years following his conviction after a jury trial of multiple counts of the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. In December 2011, petitioner commenced this proceeding pursuant to CPLR article 70 for a writ of habeas corpus challenging the legality of his incarceration on the ground that the indictment upon which his conviction is based is defective. Supreme Court denied the petition without a hearing and petitioner now appeals.
We affirm. Habeas corpus relief is not available where, as here, the claims asserted by petitioner could have been raised on direct appeal or through a motion pursuant to CPL article 440 (see People ex rel. Backman v Walsh, 101 A.D.3d 1316, 1316 , lv denied 20 N.Y.3d 863 ; People ex rel. Franza v Sheahan, 100 A.D.3d 1315, 1315 , appeal dismissed 20 N.Y.3d 1032 ; People ex rel. Chapman v LaClair, 64 A.D.3d 1026, 1026 , lv denied 13 N.Y.3d 712 ). Finding no reason to depart from traditional orderly procedure, we conclude that Supreme Court properly denied the petition (see id.).
Lahtinen, J.P., McCarthy, Spain and Egan Jr., JJ., ...