PEOPLE SPAULDING v. NAPOLI (2008)

Appeal from a judgment of the Supreme Court (Garry, J.), entered June 4, 2007, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is currently serving a prison sentence of 25 years to life upon his 1994 conviction of murder in the second degree.   The conviction was affirmed upon appeal (People v. Spaulding, 222 A.D.2d 312, 636 N.Y.S.2d 617 [1995], lv. denied 88 N.Y.2d 942, 647 N.Y.S.2d 176, 670 N.E.2d 460 [1996] ) and, since then, petitioner has made various unsuccessful postconviction applications, including motions pursuant to CPL article 440 and habeas corpus proceedings.   Petitioner commenced the instant application for a writ of habeas corpus alleging, among other things, that his detention is illegal because the indictment was jurisdictionally defective in that it improperly characterized murder in the second degree as an armed felony, and because the correctional facility at which he is detained does not have a copy of his certificate of conviction on file, in violation of CPL 380.60. Supreme Court denied the application, as well as petitioner's subsequent motion for reconsideration, which the court treated as a motion to reargue.   Petitioner now appeals.

The issues presented by petitioner could have been raised on direct appeal or in a motion pursuant to CPL article 440 and, thus, are not proper subjects of a habeas corpus proceeding (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];  People ex rel. Alvarez v. West, 22 A.D.3d 996, 802 N.Y.S.2d 391 [2005], lv. denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791 [2006] ).   Furthermore, no extraordinary circumstances exist to justify a departure from orderly procedure (see People ex rel. Figueroa v. Walsh, 40 A.D.3d 1282, 834 N.Y.S.2d 493 [2007] ).   Accordingly, we affirm.

ORDERED that the judgment is affirmed, without costs.