THE PEOPLE OF THE STATE OF NEW YORK EX REL NATHAN LEWIS PETITIONER APPELLANT v. HAROLD GRAHAM SUPERINTENDENT AUBURN CORRECTIONAL FACILITY RESPONDENT RESPONDENT (2012)

MEMORANDUM AND ORDER

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

Memorandum:  Petitioner commenced this proceeding seeking a writ of habeas corpus.   We conclude that Supreme Court properly dismissed the petition.   Habeas corpus relief is unavailable because petitioner's contention in support of the petition “could have been, or [was], raised on direct appeal or by a motion pursuant to CPL article 440” (People ex rel. Mills v. Poole, 55 AD3d 1289, 1290, lv denied 11 NY3d 712;  see People ex rel. Robinson v. Graham, 68 AD3d 1706, lv denied 14 NY3d 706).  “Habeas corpus relief also is unavailable because petitioner would not be entitled to immediate release from custody even in the event that his contention[ ] had merit” (People ex rel. Almodovar v. Berbary, 67 AD3d 1419, 1420, lv denied 14 NY3d 703;  see People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 649).   Finally, “[b]ecause the petition lacked any justiciable basis upon which a writ of habeas corpus could be sustained, the court did not abuse its discretion in denying petitioner's application for assigned counsel” (People ex rel. Gloss v. Costello, 309 A.D.2d 1160, 1161, lv denied 1 NY3d 504 [internal quotation marks omitted];  see People ex rel. Hinton v. Graham, 66 AD3d 1402, 1402, lv denied 13 NY3d 934, rearg. denied 14 NY3d 795).

Frances E. Cafarell

Clerk of the Court