THE PEOPLE OF THE STATE OF NEW YORK EX REL GERALD SMITH PETITIONER APPELLANT v. MICHELLE ARTUS SUPERINTENDENT LIVINGSTON CORRECTIONAL FACILITY RESPONDENT RESPONDENT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. GERALD SMITH, PETITIONER–APPELLANT, v. MICHELLE ARTUS, SUPERINTENDENT, LIVINGSTON CORRECTIONAL FACILITY, RESPONDENT–RESPONDENT.

KAH 16–01170

Decided: September 29, 2017

PRESENT:  WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. CHARLES J. GREENBERG, AMHERST, FOR PETITIONER–APPELLANT. GERALD SMITH, PETITIONER–APPELLANT PRO SE. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (HEATHER MCKAY OF COUNSEL), FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Petitioner commenced this proceeding seeking a writ of habeas corpus, contending that County Court had lost jurisdiction to sentence him because of its unreasonable delay in imposing sentence, and that the sentencing judge had erred in failing to recuse himself.  We conclude that Supreme Court properly denied the petition.  As an initial matter, petitioner's contention in his pro se supplemental brief that respondent's return should have been disregarded and his petition granted because the return failed to comply with the requirements of CPLR 7008 is improperly raised for the first time on appeal (see generally People ex rel. Peoples v New York State Dept. of Corr. Servs., 117 AD3d 1486, 1487, lv denied 23 NY3d 909), and it is without merit in any event (see generally People ex rel. Caswell v New York State Div. of Parole, 11 AD3d 1008, 1008–1009, lv denied 4 NY3d 701).  With respect to the merits of the petition, habeas corpus relief is unavailable because petitioner's contentions “can be raised on his pending direct appeal from the judgment of conviction or by way of a CPL article 440 motion” (People ex rel. Thomas v. Dray, 197 A.D.2d 853, 853, lv denied 82 N.Y.2d 663, rearg. denied 83 N.Y.2d 847;  see People ex rel. Martinez v. Graham, 98 AD3d 1312, 1312, lv denied 20 NY3d 853;  People ex rel. Lanfair v. Corcoran, 60 AD3d 1351, 1351, lv. denied 12 NY3d 714).  Moreover, petitioner's recusal contention would not entitle him to immediate release even if it had merit (see generally People v. Warren, 100 AD3d 1399, 1401), and it therefore is unavailable as a basis for habeas corpus relief for that reason as well (see People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 903;  People ex rel. Cole v. Graham, 147 AD3d 1350, 1351, lv denied 29 NY3d 914).  We have reviewed petitioner's remaining contentions in his pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.

Mark W. Bennett

Clerk of the Court