PEOPLE WASHINGTON v. WALSH (2007)

Appeal from an amended judgment of the Supreme Court (LaBuda, J.), entered September 19, 2006 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1995, petitioner was convicted of manslaughter in the first degree and criminal possession of a weapon in the third degree and sentenced to an aggregate prison term of 35 years to life.   His conviction was affirmed by the Second Department (People v. Washington, 253 A.D.2d 777, 677 N.Y.S.2d 491 [1998], lv. denied 92 N.Y.2d 1040, 684 N.Y.S.2d 505, 707 N.E.2d 460 [1998] ).   He has filed four separate unsuccessful motions to vacate his conviction pursuant to CPL article 440.   His application for a writ of error coram nobis was similarly unsuccessful (People v. Washington, 288 A.D.2d 408, 732 N.Y.S.2d 900 [2001] ), as was his federal application for a writ of habeas corpus (Washington v. Walsh, 2002 WL 2003207 [E.D.N.Y., Aug. 1, 2002] ).   Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus based upon allegations of ineffective assistance of counsel, prosecutorial misconduct, evidentiary errors at trial, wrongful deprivation of transcripts and the imposition of an improper and unconstitutional sentence.   Supreme Court denied petitioner's application without a hearing, prompting this appeal.

Petitioner's arguments either already were raised in, or should have been addressed through, his direct appeal or a CPL article 440 motion, making them improper subjects of this habeas corpus proceeding (see People ex rel. Ariola v. Greene, 28 A.D.3d 1038, 1039, 814 N.Y.S.2d 342 [2006], lv. denied 7 N.Y.3d 706, 837 N.Y.S.2d 1, 868 N.E.2d 662 [2006] ).   In any event, habeas corpus relief is unavailable to petitioner because none of his arguments, even if found to be meritorious, would form the basis for his immediate release from prison (see People ex rel. Tunstall v. Miller, 24 A.D.3d 921, 921, 804 N.Y.S.2d 706 [2005], lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 [2006] ).   Accordingly, we affirm.

ORDERED that the amended judgment is affirmed, without costs.