PEOPLE EX REL BROWN 16 1939 v. 70 (2017)

Petitioner commenced this proceeding for a writ of habeas corpus alleging that he is being illegally detained. Petitioner claims, in sum, that he was arrested without probable cause and that the local court lacked subject matter jurisdiction. Petitioner's current incarceration arises from his conviction after trial of three counts of burglary in the third degree, criminal possession of stolen property in the third degree, criminal possession of burglar's tools, and criminal possession of stolen property in the fourth degree. Petitioner was sentenced on June 27, 2016, as a persistent felony offender to five concurrent terms of incarceration of fifteen years to life on the felony charges.

Habeas corpus relief is not the appropriate remedy where the issues raised in the petition could also be raised in a motion to vacate the judgment of conviction or on direct appeal (see People ex rel. McCoy v. Filion, 295 AD2d 956 (4th Dept 2002), lv denied 98 NY2d 612 (2002) ). This is so even when a petitioner raises an issue that is jurisdictional in nature (see People ex rel Richards v. Yelich, 87 AD3d 764 (3d Dept 2011), lv denied 17 NY3d 922 (2011); People ex rel Moore v. Connolly, 56 AD3d 847 (3d Dept 2008), lv denied 12 NY3d 701(2009) ). Here, Petitioner's jurisdictional and other claims could have been raised on direct appeal or a CPL § 440.10 motion, and, thus, habeas corpus relief is not available (see People ex rel Richards, 87 AD3d at 765; People ex rel Moore, 56 AD3d at 848; People ex rel. Batista v. Walker, 198 AD2d 865 (4th Dept 1993), lv denied 83 NY2d 752 (1994) ). As no “extraordinary circumstances” exist that would warrant a departure from traditional and orderly proceedings, habeas corpus relief is unavailable (see People ex rel Rivas v. Walsh, 69 AD3d 1236 (3d Dept 2010), lv denied 14 NY3d 712 (2010); People ex rel Franza v. Lape, 61 AD3d 1200 (3d Dept 2009) ).

The Court has considered the remaining contentions of Petitioner and finds them to be without merit.

Accordingly, based upon the foregoing, it is hereby

ORDERED that the petition for a writ of habeas is hereby denied in its entirety and the proceeding dismissed.

This is the Decision and Order of the Court.

Mark H. Fandrich, J.