PEOPLE LEE v. CUNNINGHAM (2006)

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered June 30, 2005 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

In December 1996, petitioner was convicted following a nonjury trial of the crimes of criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree and unlawful possession of marihuana.   His motion to set aside the verdict was denied and he was sentenced as a persistent felony offender to a lengthy prison term.   Petitioner's conviction was later affirmed on appeal (People v. Lee, 258 A.D.2d 352, 687 N.Y.S.2d 312 [1999], lv. denied 93 N.Y.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988 [1999] ), and his subsequent motion to vacate the judgment of conviction and application for federal habeas corpus relief were denied.   Petitioner thereafter brought this application for a writ of habeas corpus in Sullivan County where he is currently incarcerated.   Supreme Court dismissed the application without a hearing and this appeal ensued.

In support of his application, petitioner challenges the sufficiency of the evidence before the grand jury and the propriety of certain pretrial rulings by the trial court relating thereto.   However, inasmuch as these claims could have been raised in the context of petitioner's direct appeal or CPL article 440 motion, habeas corpus relief is not the proper remedy (see People ex rel. Burr v. Smith, 6 A.D.3d 841, 841, 773 N.Y.S.2d 913 [2004], lv. denied 3 N.Y.3d 605, 785 N.Y.S.2d 21, 818 N.E.2d 663 [2004];  Matter of Lebron v. Herbert, 287 A.D.2d 917, 918, 731 N.Y.S.2d 679 [2001], lv. denied 97 N.Y.2d 609, 739 N.Y.S.2d 357, 765 N.E.2d 853 [2002] ).   Moreover, we find no evidence of extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Carter v. Miller, 261 A.D.2d 674, 675, 691 N.Y.S.2d 193 [1999] ).

ORDERED that the judgment is affirmed, without costs.