PEOPLE EX REL HOLLAND v. TEDFORD (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Richard B. Meyer, J.), entered August 29, 2022 in Essex County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is currently serving a prison term of 25 years to life upon his 1977 conviction of murder in the second degree and robbery in the first degree.  The charges stemmed from petitioner's involvement in a robbery, during the course of which one of his codefendants shot and killed an off-duty transit detective (Holland v. Scully, 797 F.2d 57, 59 [2d Cir.1986], cert denied 479 U.S. 870, 107 S.Ct. 237, 93 L.Ed.2d 162 [1986]).  Petitioner's conviction was affirmed upon his direct appeal (People v. Holland, 80 A.D.2d 753, 437 N.Y.S.2d 214 [2d Dept. 1981]).  Upon his subsequent filing of a habeas corpus petition in federal court, the U.S. Court of Appeals for the Second Circuit concluded that petitioner's trial was tainted and remanded the matter to the District Court with a directive to grant the writ unless petitioner was retried within a reasonable period of time (Holland v. Scully, 797 F.2d at 70).  Petitioner was retried and was again convicted of murder in the second degree and robbery in the first degree, and his conviction was affirmed upon direct appeal (People v. Holland, 179 A.D.2d 822, 578 N.Y.S.2d 917 [2d Dept. 1992], lv denied 79 N.Y.2d 1050, 584 N.Y.S.2d 1018, 596 N.E.2d 416 [1992]).  Petitioner later commenced this CPLR article 70 proceeding for habeas corpus relief, alleging that his conviction of murder in the second degree following retrial violated the constitutional prohibition against double jeopardy.  Supreme Court dismissed the application without a hearing, and petitioner now appeals.

“It is well settled that habeas corpus relief is not an appropriate remedy for resolving claims that could have been or that were raised on direct appeal or in a postconviction motion” (People ex rel. Latta v. Martuscello, 140 A.D.3d 1421, 1421, 32 N.Y.S.3d 517 [3d Dept. 2016] [internal quotation marks and citations omitted], lv denied 28 N.Y.3d 904, 2016 WL 6111806 [2016];  see People ex rel. Warren v. Artus, 17 A.D.3d 896, 896, 792 N.Y.S.2d 879 [3d Dept. 2005], lv denied 5 N.Y.3d 705, 801 N.Y.S.2d 252, 834 N.E.2d 1262 [2005]).  Accordingly, as petitioner's contention that he was subjected to double jeopardy could have been raised upon direct appeal or in a CPL article 440 motion, Supreme Court properly denied petitioner's application (see People ex rel. Jackson v. McGinnis, 251 A.D.2d 731, 731, 672 N.Y.S.2d 826 [3d Dept. 1998], appeal dismissed & lv. denied 92 N.Y.2d 913, 680 N.Y.S.2d 51, 702 N.E.2d 837 [1998];  People ex rel. Webb v. Leonardo, 136 A.D.2d 840, 841, 523 N.Y.S.2d 683 [3d Dept. 1988]).

ORDERED that the judgment is affirmed, without costs.

Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and Powers, JJ., concur.