THE PEOPLE OF THE STATE OF NEW YORK EX REL ERICK CAMPBELL PETITIONER APPELLANT v. SUPERINTENDENT COLVIN MID STATE 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 that, inter alia, dismissed without a hearing his petition pursuant to CPLR article 70.  Petitioner's contention that respondent failed to file a proper return under CPLR 7008 is unpreserved for our review (see People ex rel. Mitchell v. Cully, 63 AD3d 1679, 1679, lv denied 13 NY3d 708), and we decline to exercise our power to review it as a matter of discretion in the interest of justice.

Contrary to petitioner's further contention, the motion to dismiss, which Supreme Court converted to a return, established that petitioner was lawfully detained pursuant to an undischarged sentence of incarceration, and the petition was therefore properly dismissed (see People ex rel. Allen v. Hammock, 128 A.D.2d 657, 657).

Lastly, we reject petitioner's contention that it was an abuse of discretion for the court to deny his request for assigned counsel.  Petitioner failed to make that request until briefs had been filed with the court, and we therefore conclude that petitioner suffered no prejudice from a lack of assigned counsel (see People ex rel. Eaddy v. Wilkins, 27 A.D.2d 984, 984).

Frances E. Cafarell

Clerk of the Court