PEOPLE MORGAN v. BEHRLE (2009)

Appeal from a judgment of the Supreme Court (Pulver Jr., J.), entered December 10, 2007 in Greene County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus contending that the warrant used to secure a blood sample from him lacked probable cause.   Inasmuch as petitioner could, and apparently did, advance this claim on his direct appeal from the judgment of conviction (People v. Morgan, 48 A.D.3d 703, 852 N.Y.S.2d 328 [2008], lv. denied 10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008] ), habeas corpus relief does not lie (see People ex rel. Cropper v. Taylor, 48 A.D.3d 852, 853, 849 N.Y.S.2d 809 [2008], lv. denied 10 N.Y.3d 710, 859 N.Y.S.2d 396, 889 N.E.2d 83 [2008];  People ex rel. Encarnacion v. McGinnis, 2 A.D.3d 933, 767 N.Y.S.2d 708 [2003], lv. denied 1 N.Y.3d 510, 777 N.Y.S.2d 19, 808 N.E.2d 1278 [2004] ).   Moreover, even assuming that petitioner's argument had merit, habeas corpus relief nonetheless would be inappropriate as petitioner would not be entitled to immediate release from prison (see People ex rel. King v. Bennett, 45 A.D.3d 1015, 1016, 846 N.Y.S.2d 399 [2007], lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] ).   Accordingly, Supreme Court's judgment is affirmed.

ORDERED that the judgment is affirmed, without costs.

CARDONA, P.J., PETERS, SPAIN, ROSE and LAHTINEN, JJ., concur.