PEOPLE EX REL MARSHALL v. KING (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Paul Davenport, J.), entered September 24, 2025 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is currently serving concurrent prison terms of 15 years following his 2001 conviction of, among other things, two counts of criminal possession of a weapon in the second degree.¹  Those convictions were affirmed upon appeal (see People v. Marshall, 35 AD3d 764 [2d Dept 2006], lv denied 8 NY3d 947 [2007] ).  Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging that the trial court lacked jurisdiction over the criminal possession of a weapon charges because the indictment failed to allege that petitioner lacked a license to possess the weapons.  Supreme Court dismissed the petition without a hearing, and petitioner appeals.

We affirm.  “Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature” (People ex rel. Thomas v Superintendent of Elmira Corr. Facility, 239 AD3d 1159, 1159 [3d Dept 2025] [internal quotation marks and citations omitted], appeal dismissed 45 NY3d 983 [2026];  see People ex rel. Nailor v. Rockwood, 215 AD3d 1159, 1160 [3d Dept 2023] ).  We agree with Supreme Court that petitioner's challenge to the accusatory instrument underlying his convictions for criminal possession of a weapon in the second degree could have been raised in his direct appeal or in a CPL article 440 motion (see People ex rel. Nailor v. Rockwood, 215 AD3d at 1160;  People ex rel. West v. Coveny, 181 AD3d 1141, 1141 [3d Dept 2020];  People ex rel. Gonzalez v New York State Dept. of Correctional Servs., 86 AD3d 886, 887 [3d Dept 2011], lv denied 18 NY3d 802 [2011] ).  Discerning no reason to depart from traditional orderly procedure, we conclude that Supreme Court properly dismissed petitioner's application without a hearing (see People ex rel. Rudolph v. Lilley, 215 AD3d 1196, 1197 [3d Dept 2023], lv denied 40 NY3d 907 [2023];  People ex rel. Hook v. Tedford, 213 AD3d 1065, 1066 [3d Dept 2023] ).²

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   These terms were ordered to run consecutively to other sentences that petitioner received.

2.   In light of this decision, petitioner's challenge to Supreme Court's alternative finding that, by failing to attach a copy of his commitment mandate to his petition, the petition should be dismissed for a lack of compliance with CPLR 7002(c)(1), has been rendered academic.

Clark, J.P., Ceresia, McShan, Mackey and Ryba, JJ., concur.