PEOPLE LOPEZ v. PEOPLE

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

The PEOPLE of the State of New York ex rel. Eliot LOPEZ, Appellant, v. The PEOPLE of the State of New York et al., Respondents.

Decided: December 30, 2010

Before:  CARDONA, P.J., PETERS, LAHTINEN, STEIN and EGAN, JR., JJ. Eliot Lopez, Comstock, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondents.

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered April 5, 2010 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1995, petitioner was convicted of six counts of murder in the second degree and was sentenced to an aggregate term of 30 years to life in prison.   His convictions were subsequently upheld on appeal (People v. Lopez, 262 A.D.2d 109, 689 N.Y.S.2d 640 [1999], lv. denied 93 N.Y.2d 1003, 695 N.Y.S.2d 749, 717 N.E.2d 1086 [1999] ) and his CPL article 440 motion was denied, as was his application for federal habeas corpus relief (Lopez v. Walker, 239 F.Supp. 2d 368, 371–375 [2003] ).   Thereafter, petitioner brought the instant application for a writ of habeas corpus pursuant to CPLR article 70.   Supreme Court denied the application without a hearing, resulting in this appeal.

Petitioner argues that his due process rights were violated because he was not afforded notice of his right to testify before the grand jury in accordance with CPL 190.50.   However, inasmuch as this claim could have been raised on direct appeal or in petitioner's CPL article 440 motion, habeas corpus relief is not the appropriate remedy (see People ex rel. Jackson v. Rock, 67 A.D.3d 1080, 886 N.Y.S.2d 922 [2009], lv. denied 14 N.Y.3d 704, 898 N.Y.S.2d 99, 925 N.E.2d 104 [2010];  People ex rel. Chapman v. LaClair, 64 A.D.3d 1026, 1026, 882 N.Y.S.2d 758 [2009], lv. denied 13 N.Y.3d 712, 891 N.Y.S.2d 304, 919 N.E.2d 719 [2009] ).   In any event, even if the claim had merit, habeas corpus relief is unavailable inasmuch as it would not entitle petitioner to immediate release from prison (see People ex rel. Hall v. Rock, 71 A.D.3d 1303, 895 N.Y.S.2d 889 [2010], appeal dismissed 14 N.Y.3d 882, 903 N.Y.S.2d 338, 929 N.E.2d 401 [2010], lv. denied 15 N.Y.3d 703, 906 N.Y.S.2d 817, 933 N.E.2d 216 [2010];  People ex rel. Maye v. Schenectady County Court, 63 A.D.3d 1471, 880 N.Y.S.2d 868 [2009] ).   Accordingly, Supreme Court properly denied petitioner's application.

ORDERED that the judgment is affirmed, without costs.

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