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

The PEOPLE of the State of New York ex rel. William FIGUEROA, Appellant, v. James J. WALSH, as Superintendent of Sullivan Correctional Facility, Respondent.

Decided: July 28, 2005

Before:  CARDONA, P.J., SPAIN, CARPINELLO, MUGGLIN and LAHTINEN, JJ. William Figueroa, Fallsburg, appellant pro se. Eliot Spitzer, Attorney General, Albany (Frank Walsh of counsel), for respondent.

Appeal from a judgment of the Supreme Court (La Buda, J.), entered February 1, 2005 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

As the result of his participation in a drive-by shooting which caused the death of a woman, petitioner was convicted in 1991 of the crimes of murder in the second degree, reckless endangerment in the first degree, two counts of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree.   He was sentenced to consecutive prison terms of 25 years to life on the murder conviction, 3 1/212 to 7 years on the reckless endangerment conviction and 7 1/212 to 15 years on the second degree criminal weapons possession convictions.   He was further sentenced to 3 1/212 to 7 years in prison on the third degree criminal weapons possession convictions, to run concurrently with the other charges.   The judgment convicting him of the aforementioned crimes was affirmed by the Second Department (People v. Figueroa, 213 A.D.2d 669, 625 N.Y.S.2d 49 [1995] ) and the Court of Appeals denied his application for leave to appeal (People v. Figueroa, 85 N.Y.2d 972, 629 N.Y.S.2d 732, 653 N.E.2d 628 [1995] ).   His numerous CPL article 440 motions to vacate the judgment of conviction and set aside the sentence were also denied.   Thereafter, he commenced this habeas corpus proceeding pursuant to CPLR article 70 seeking to be released from prison on the grounds that the indictment was defective insofar as it charged him with both intentional and depraved indifference murder contrary to People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004] and that he was wrongfully convicted of the latter crime.   Supreme Court denied the petition without a hearing and this appeal ensued.

Inasmuch as petitioner's claims could have been raised on direct appeal or in the context of a CPL article 440 motion, this application for a writ of habeas corpus is inappropriate (see People ex rel. Wright v. Miller, 16 A.D.3d 746, 790 N.Y.S.2d 734 [2005];  People ex rel. Bunting v. McGinnis, 8 A.D.3d 795, 795-796, 777 N.Y.S.2d 921 [2004], lv. denied 3 N.Y.3d 608, 785 N.Y.S.2d 25, 818 N.E.2d 667 [2004] ).   In any event, petitioner has unsuccessfully challenged the validity of the indictment and raised related claims both in his direct appeal and in his fifth CPL article 440 motion.   Furthermore, even if his murder conviction were reversed, he would not be entitled to immediate release from prison (see People ex rel. Burr v. Smith, 6 A.D.3d 841, 841, 773 N.Y.S.2d 913 [2004], lv. denied 3 N.Y.3d 605, 785 N.Y.S.2d 21, 818 N.E.2d 663 [2004];  People ex rel. Burr v. Duncan, 289 A.D.2d 898, 898, 734 N.Y.S.2d 910 [2001], lv. denied 97 N.Y.2d 612, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002] ).

ORDERED that the judgment is affirmed, without costs.

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