PEOPLE PITTS v. UNGER (2009)

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York ex rel. Bernard PITTS, Petitioner-Appellant, v. David UNGER, Superintendent, Orleans Correctional Facility, Respondent-Respondent.

Decided: March 20, 2009

PRESENT: MARTOCHE, J.P., CENTRA, FAHEY, AND PINE, JJ.

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Petitioner-Appellant. Andrew M. Cuomo, Attorney General, Albany (Victor Paladino of Counsel), for Respondent-Respondent.

We reject the contention of petitioner that Supreme Court erred in dismissing his petition for a writ of habeas corpus. Petitioner's contention in support of the petition with respect to double jeopardy could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 (see People ex rel. Pitts v. McCoy, 11 A.D.3d 985, 782 N.Y.S.2d 389, lv. denied 4 N.Y.3d 705, 792 N.Y.S.2d 898, 825 N.E.2d 1093; People ex rel. Hammock v. Meloni, 233 A.D.2d 929, 649 N.Y.S.2d 873, lv. denied 89 N.Y.2d 807, 654 N.Y.S.2d 717, 677 N.E.2d 289). Contrary to petitioner's contentions, the petition was properly dismissed in response to respondent's motion (see CPLR 404[a]; see also People ex rel. Goude v. La Vallee, 42 A.D.2d 648, 345 N.Y.S.2d 191), and petitioner was afforded meaningful representation by the attorney assigned to represent him in connection with the habeas corpus petition (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

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

MEMORANDUM:

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