PEOPLE McDERMOTT v. ARTUS (2007)

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 28, 2006 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Following his conviction of multiple counts of burglary in the second degree in Herkimer and Oneida Counties, petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus.   He based his application upon claims that his waiver of indictment and guilty pleas were involuntary and that the case was improperly prosecuted by the procedure set forth in CPL 195.10.   Supreme Court summarily denied the application without a hearing and this appeal ensued.

 We agree with Supreme Court that petitioner's claims could have been raised in a direct appeal or in his unsuccessful CPL article 440 motions to vacate the conviction.   Thus, habeas corpus relief is unavailable (see People ex rel. Johnson v. McGinnis, 28 A.D.3d 896, 897, 812 N.Y.S.2d 385 [2006], lv. denied 7 N.Y.3d 705, 819 N.Y.S.2d 873, 853 N.E.2d 244 [2006];  People ex rel. Hunter v. Buffardi, 15 A.D.3d 736, 737, 788 N.Y.S.2d 871 [2005] ).   In any event, even if his claims were meritorious, they would not entitle him to immediate release from prison (see People ex rel. Bonez v. West, 22 A.D.3d 992, 993, 802 N.Y.S.2d 390 [2005], lv. denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791 [2006] ).   Therefore, Supreme Court properly denied the application.

ORDERED that the judgment is affirmed, without costs.