PEOPLE v. CALLADO (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Cahill, J.), entered October 3, 2018 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner was convicted in 1992 of, among other crimes, attempted murder in the first degree and two counts of robbery in the first degree, for which he is serving an aggregate prison term of 52 years to life in prison, and his convictions were affirmed on his direct appeal (People v. DeFreitas, 213 A.D.2d 96, 630 N.Y.S.2d 755 [1995], lv denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777 [1995] ).  In 2018, petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus contending, among other things, that the indictment under which he was convicted was defective due to improper joinder of charges under repealed statutory provisions.  Supreme Court dismissed the petition, and this appeal ensued.

It is well settled that “habeas corpus is not the appropriate remedy for raising claims that could have been raised on direct appeal or in the context of a CPL article 440 motion” (People ex rel. McCray v. LaClair, 161 A.D.3d 1490, 1491, 77 N.Y.S.3d 768 [2018] [internal quotation marks, brackets and citation omitted], lv dismissed and denied 32 N.Y.2d 1143, 92 N.Y.S.3d 181, 116 N.E.3d 665 [2019];  see People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [2017] ).  Petitioner's contentions with regard to improper joinder and the validity of the indictment concern matters that could have been raised on direct appeal, but were admittedly not so raised and, thus, habeas corpus relief is not available (see People v. LaValley, 102 A.D.3d 1038, 1039, 957 N.Y.S.2d 917 [2013] ).  To the extent that petitioner argues that appellate counsel was ineffective for failing to raise this challenge on his direct appeal, an application for a writ of error coram nobis is the appropriate vehicle by which to raise such a claim (see People ex rel. Williams v. Griffin, 114 A.D.3d 976, 976, 979 N.Y.S.2d 859 [2014] ), an avenue that he has pursued, unsuccessfully, four times (People v. DeFreitas, 262 A.D.2d 499, 691 N.Y.S.2d 785 [1999];  People v. DeFreitas, 60 A.D.3d 1080, 875 N.Y.S.2d 806 [2009], lv denied 12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076 [2009];  People v. DeFreitas, 95 A.D.3d 902, 942 N.Y.S.2d 816 [2012], lv denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 [2012];  People v. DeFreitas, 156 A.D.3d 718 [2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ).

Notably, petitioner raised similar claims in a prior motion to vacate the judgment of conviction pursuant to CPL article 440, which was denied in 2011 on the ground that the claims are based on matters in the record and could have been raised on direct appeal (see CPL 440.10[2][c];  People v. Cuadrado, 9 N.Y.3d 362, 364–365, 850 N.Y.S.2d 375, 880 N.E.2d 861 [2007];  People ex rel. Chapman v. LaClair, 64 A.D.3d 1026, 1026, 882 N.Y.S.2d 758 [2009], lv denied 13 N.Y.3d 712, 891 N.Y.S.2d 304, 919 N.E.2d 719 [2009] ).¹  In any event, inasmuch as none of the grounds asserted by petitioner would entitle him to immediate release from custody, habeas corpus relief is inappropriate (see People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 649, 467 N.Y.S.2d 566, 454 N.E.2d 1309 [1983];  People ex rel. Rodriguez v. Miller, 150 A.D.3d 1500, 1500–1501, 52 N.Y.S.3d 237 [2017] ).  Accordingly, Supreme Court properly dismissed the petition (see CPLR 7803[a] ).²

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Petitioner's request for permission to appeal from the order denying his motion pursuant to CPL article 440 was reportedly denied on July 8, 2011.

2.   To the extent that Supreme Court indicated that the dismissal was “without prejudice to renewal as a CPL 440.[10] motion,” any such motion would be subject to the restrictions in CPL article 440.

Garry, P.J., Egan Jr., Clark, Devine and Rumsey, JJ., concur.