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

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

Decided: June 25, 2009

Before:  SPAIN, J.P., ROSE, MALONE JR., KAVANAGH and GARRY, JJ. Rickey Clark, Dannemora, appellant pro se.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 21, 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 2004, following a jury trial, petitioner was convicted of burglary in the second degree and possession of burglar's tools and sentenced, as a second violent felony offender, to concurrent prison terms of 15 years and one year, respectively.   Petitioner's conviction and sentence were affirmed on appeal (People v. Clark, 23 A.D.3d 673, 804 N.Y.S.2d 426 [2005], lv. denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006] ), and the subsequent denial of his application for a writ of error coram nobis was also affirmed (People v. Clark, 45 A.D.3d 776, 844 N.Y.S.2d 897 [2007], lv. denied 10 N.Y.3d 762, 854 N.Y.S.2d 324, 883 N.E.2d 1259 [2008] ).   Petitioner thereafter commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that, for various reasons, his detainment was illegal.   Supreme Court denied the application and this appeal ensued.   We now affirm.

Petitioner challenges his conviction on multiple grounds, including that County Court allegedly stated, in an off-the-record colloquy, that the People failed to submit sufficient evidence at his criminal trial to demonstrate that petitioner had committed a crime and that such should have resulted in an acquittal.   However, we note that habeas corpus relief is unavailable, inasmuch as the issues now raised could have been raised on petitioner's direct appeal from his judgment of conviction or via a CPL article 440 motion.   Moreover, we perceive no reason in this case to depart from the existing orderly procedure (see People ex rel. Moore v. Connolly, 56 A.D.3d 847, 848, 867 N.Y.S.2d 735 [2008], lv. denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 [2009];  see also People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 220 N.E.2d 653 [1966] ).   Accordingly, Supreme Court did not err in denying the petition (see People ex rel. Moore v. Connolly, 56 A.D.3d at 848, 867 N.Y.S.2d 735;  People ex rel. Barnes v. Allard, 25 A.D.3d 893, 894, 807 N.Y.S.2d 688 [2006], lv. denied 6 N.Y.3d 714, 816 N.Y.S.2d 750, 849 N.E.2d 973 [2006] ).

ORDERED that the judgment is affirmed, without costs.

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