PEOPLE ELKADY v. CONWAY (2007)

Petitioner commenced this original proceeding seeking a writ of habeas corpus.   According to petitioner, the evidence presented at his trial in 1998 does not support his conviction of depraved indifference murder in light of the decisions of the Court of Appeals in People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788N.Y.S.2d 670, 821 N.E.2d 975, People v. Suarez, 6 N.Y.3d 202, 811 N.Y.S.2d 267, 844 N.E.2d 721, and People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163.  “Because the petition raises issues that could have been and were raised on petitioner's direct appeal and by a CPL 440.10 motion, habeas corpus relief is unavailable” (People ex rel. Lyons v. Conway, 32 A.D.3d 1324, 821 N.Y.S.2d 511, lv. denied 8 N.Y.3d 802, 830 N.Y.S.2d 9, 862 N.E.2d 88;  see e.g. People ex rel. Gloss v. Costello, 309 A.D.2d 1160, 764 N.Y.S.2d 895, lv. denied 1 N.Y.3d 504, 775 N.Y.S.2d 781, 807 N.E.2d 894;  People ex rel. Spencer v. Burge, 307 A.D.2d 772, 762 N.Y.S.2d 858).   In any event, pursuant to the express statement of the Court of Appeals in Policano v. Herbert, 7 N.Y.3d 588, 603, 825 N.Y.S.2d 678, 859 N.E.2d 484, the case law upon which defendant relies does not apply retroactively.

It is hereby ORDERED that said petition be and the same hereby is unanimously denied without costs.

MEMORANDUM: