PEOPLE BROWN v. ARTUS

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York ex rel. Edward BROWN, Appellant, v. Dale ARTUS, as Superintendent of Clinton Correctional Facility, Respondent.

Decided: July 23, 2009

Before:  CARDONA, P.J., PETERS, LAHTINEN, KAVANAGH and GARRY, JJ. Edward Brown, Dannemora, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered October 27, 2008 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2002, petitioner was convicted by a jury of burglary in the first degree, criminal possession of a weapon in the third degree, possession of stolen property in the fifth degree and resisting arrest and was sentenced to a minimum prison term of 22 years.   Petitioner's convictions were upheld on direct appeal (People v. Brown, 16 A.D.3d 430, 431, 790 N.Y.S.2d 411 [2005], lv. denied 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 [2005] ).   He commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging various constitutional violations and certain jurisdictional defects.   Supreme Court denied petitioner's application without a hearing, prompting this appeal.

Habeas corpus relief is unavailable where, as here, petitioner's arguments could have been raised either in the context of a collateral motion or upon a direct appeal from the judgment of conviction (see People ex rel. Fulton v. Lape, 61 A.D.3d 1227, 1227-1228, 876 N.Y.S.2d 665 [2009] ).   Moreover, a review of the record reflects that petitioner has unsuccessfully raised the identical issues in multiple prior state and federal habeas corpus proceedings.   Under such circumstances, we perceive no basis upon which to depart from traditional orderly procedure and Supreme Court's judgment is affirmed (see People ex rel. Franza v. Lape, 61 A.D.3d 1200, 1200, 877 N.Y.S.2d 733 [2009] ).

ORDERED that the judgment is affirmed, without costs.

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