PEOPLE EX REL TORRES v. GRAHAM (2018)

MEMORANDUM AND ORDER

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered June 13, 2017 in a habeas corpus proceeding.  The judgment, among other things, dismissed the petition.

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

Memorandum:  Petitioner appeals from a judgment that, among other things, dismissed his habeas corpus petition.  He contends that Supreme Court erred in denying him habeas corpus relief without an evidentiary hearing because he made a meritorious initial showing that he was arrested pursuant to an improper “John Doe” warrant that was not subsequently amended to include his name or a description of him.  We reject that contention.  Insofar as petitioner directs us to testimony in the record of his direct appeal (People v. Torres, 129 A.D.3d 1535, 10 N.Y.S.3d 771 [4th Dept. 2015] ), or information discovered through a Freedom of Information Law request, habeas corpus relief is not appropriate because he could have raised his contention on direct appeal or in a CPL article 440 motion (see People ex rel. Frederick v. Superintendent, Auburn Corr. Facility, 156 A.D.3d 1468, 1468, 65 N.Y.S.3d 877 [4th Dept. 2017], lv denied 31 N.Y.3d 908, 2018 WL 2727903 [2018];  People ex rel. Haddock v. Dolce, 149 A.D.3d 1593, 1593, 51 N.Y.S.3d 470 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3878099 [2017];  see generally People v. Rossborough, 122 A.D.3d 1244, 1245, 996 N.Y.S.2d 407 [4th Dept. 2014] ).  We have considered petitioner's remaining arguments and conclude that they do not warrant modification or reversal of the judgment.