PEOPLE MOXLEY v. ZON (2006)

Supreme Court properly denied, without a hearing, petitioner's petition for a writ of habeas corpus.   Petitioner was tried on charges of both intentional and depraved indifference murder in the second degree (Penal Law § 125.25[1], [2] );  he was acquitted of intentional murder, but convicted of depraved indifference murder.   We affirmed his judgment of conviction in 1997 (People v. Moxley, 236 A.D.2d 778, 653 N.Y.S.2d 887, lv. denied 89 N.Y.2d 1097, 660 N.Y.S.2d 391, 682 N.E.2d 992), and he is currently incarcerated.

 In this proceeding, petitioner for the first time avers that he intended to kill his victim and seeks a hearing at which he intends to prove that fact.   He contends that, if he prevails at the hearing, the evidence would no longer support his conviction of depraved indifference murder pursuant to People v. Suarez, 6 N.Y.3d 202, 811 N.Y.S.2d 267, 844 N.E.2d 721, 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, 788 N.Y.S.2d 670, 821 N.E.2d 975, and People v. Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273 and, therefore, his release is required.

 We need not determine whether the cases upon which petitioner relies changed the law because, even if they had, petitioner would not be entitled to release.   Because the judgment of conviction is final, petitioner would be entitled to retroactive application of the cases upon which he relies only if they constituted a change in the law and if allowing the conviction to stand under that change in the law would amount to “ ‘manifest injustice’ ” (People v. Pepper, 53 N.Y.2d 213, 222, 440 N.Y.S.2d 889, 423 N.E.2d 366, cert. denied 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383).   Even assuming, arguendo, that a change in the law did occur, we conclude that defendant would not be entitled to release because it cannot be said that petitioner's continued imprisonment would amount to manifest injustice.   Because it appears from the petition that petitioner is not illegally detained, the petition was properly denied (see CPLR 7003[a] ).

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

MEMORANDUM: