PEOPLE ARIOLA v. GREENE (2006)

Appeal from a judgment of the Supreme Court (Berke, J.), entered August 17, 2005 in Washington 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 December 2002 convictions of attempted robbery in the third degree and manslaughter in the first degree, defendant was sentenced, respectively, to concurrent terms of 1 to 3 years and seven years in prison.   The judgment of conviction was thereafter affirmed by the Fourth Department (People v. Ariola, 15 A.D.3d 882, 789 N.Y.S.2d 389 [2005], amended 17 A.D.3d 1172, 793 N.Y.S.2d 923 [2005] ) and leave to appeal was denied by the Court of Appeals (People v. Ariola, 5 N.Y.3d 784, 801 N.Y.S.2d 805, 835 N.E.2d 665 [2005] ).   Defendant's CPL 440.10 motion to vacate the judgment of conviction was dismissed.   He then commenced this habeas corpus proceeding, which was denied by Supreme Court.   This appeal ensued.

We affirm.   In support of his application for habeas corpus relief, petitioner asserts that the provisions of CPL 730.40 were not followed during the proceedings leading to his conviction.   However, inasmuch as petitioner raised this claim in his direct appeal and CPL 440.10 motion, it is not the proper subject of this habeas corpus proceeding (see People ex rel. Tunstall v. Miller, 24 A.D.3d 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];  People ex rel. Parsons v. Walsh, 21 A.D.3d 1169, 800 N.Y.S.2d 853 [2005], lv. denied 6 N.Y.3d 702, 810 N.Y.S.2d 416, 843 N.E.2d 1156 [2005] ).   His other arguments likewise were, or could have been, raised in these forums.   In any event, even if we were to consider his claims and conclude that they had merit, habeas corpus relief is unavailable as petitioner would not be entitled to immediate release from prison (see People ex rel. Tunstall v. Miller, supra ).

ORDERED that the judgment is affirmed, without costs.