The People, etc., ex rel. James Burgess, appellant, v. Robert Ercole, etc., respondent. (2010)

Submitted-January 4, 2010

DECISION & ORDER

In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Dolan, J.), entered August 2, 2007, which, without a hearing, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

“A writ of habeas corpus may not be used for review of issues that have been, or could have been, reviewed on direct appeal or by a postjudgment motion addressed to the court in which an underlying judgment of conviction was rendered” (People ex rel. Dushain v. Ercole, 64 AD3d 669, 669;  see People ex rel. Abdul-Aziz v Marshall, 68 AD3d 902, lv denied 13 NY3d 709;  People ex rel. Barnes v. Fischer, 303 A.D.2d 526).   Here, the petitioner raised the identical issue in two prior unsuccessful motions for postconviction relief under CPL article 440.   Leave to appeal from the orders determining those motions was denied.   Where a petitioner presents no fundamental constitutional or statutory claim that was not already reviewed on a prior CPL article 440 motion, the petition is procedurally barred (see People ex rel. Almeyda v. Schultz, 18 AD3d 582, 582-583).

Therefore, the Supreme Court properly denied the petition and dismissed the proceeding without conducting a hearing.

SKELOS, J.P., SANTUCCI, DICKERSON and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court