THE PEOPLE OF THE STATE OF NEW YORK EDWARD BROWN v. THOMAS GRIFFIN

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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. THOMAS GRIFFIN, as Superintendent of Eastern Correctional Facility, Respondent.

518951

Decided: December 11, 2014

Before:  Lahtinen, J.P., McCarthy, Garry, Rose and Devine, JJ. Edward Brown, Dannemora, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  October 21, 2014

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered April 7, 2014 in Ulster 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 sentenced to a minimum prison term of 22 years following his conviction of various crimes, including burglary in the first degree.   The convictions were upheld upon direct appeal (People v. Brown, 16 AD3d 430, 431 [2005], lv denied 4 NY3d 852 [2005] ).   He commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging that any purported waiver of his immunity before the grand jury was ineffective.

Habeas corpus relief does not lie where, as here, petitioner's argument 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. Thigpen v. Cunningham, 85 AD3d 1512, 1513 [2011], lv denied 17 NY3d 717 [2011] ).   Moreover, petitioner has admittedly raised this issue unsuccessfully on direct appeal and in various prior habeas corpus proceedings.   Under these circumstances, and in light of the fact that the record discloses no extraordinary circumstances warranting a departure from traditional orderly procedure, Supreme Court's judgment is affirmed (see People ex rel. Brown v. Artus, 64 AD3d 1064, 1064 [2009], lv denied 13 NY3d 709 [2009];  People ex rel. Franza v. Lape, 61 AD3d 1200 [2009] ).

Lahtinen, J.P., McCarthy, Garry, Rose and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

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