THE PEOPLE OF THE STATE OF NEW YORK EX REL ANTONIO COLE PETITIONER APPELLANT v. HAROLD GRAHAM SUPERINTENDENT AUBURN CORRECTIONAL FACILITY RESPONDENT RESPONDENT (2017)

MEMORANDUM AND ORDER

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

Memorandum:  Petitioner appeals from a judgment dismissing his petition seeking a writ of habeas corpus on the ground that his guilty plea was coerced.  Supreme Court properly dismissed the petition inasmuch as petitioner's contention concerning the voluntariness of his plea “was or could have been raised on direct appeal from the judgment of conviction or in a motion pursuant to CPL article 440” (People ex rel. St. Germain v. Walker, 202 A.D.2d 1053, 1053, lv denied 83 N.Y.2d 758;  see People ex rel. Peoples v New York State Dept. of Corr. Servs., 117 AD3d 1486, 1487, lv denied 23 NY3d 909).  Contrary to petitioner's contention, the allegations in the petition do not warrant departure from traditional orderly procedure (see People ex rel. Lifrieri v. Lee, 116 AD3d 720, 720, lv dismissed 24 NY3d 952, rearg. denied 24 NY3d 1039;  People ex rel. Hammock v. Meloni, 233 A.D.2d 929, 929, lv denied 89 N.Y.2d 807).  Moreover, habeas corpus relief is unavailable to petitioner because, even if his contentions had merit, he would be entitled only to withdraw his guilty plea and not immediate release from custody (see St. Germain, 202 A.D.2d at 1053–1054;  see generally People ex rel. Walker v Dolce, 125 AD3d 1305, 1305, lv denied 25 NY3d 910).

Frances E. Cafarell

Clerk of the Court