People ex rel. Robert Warren v Dale Artus

People ex rel. Warren v Artus 2005 NY Slip Op 03101 [17 AD3d 896] April 21, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 22, 2005

The People of the State of New York ex rel. Robert Warren, Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent.

—[*1]Rose, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered June 7, 2004 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.

Petitioner was sentenced as a second felony offender to three consecutive prison sentences of 1½ to 3 years, 3½ years and 4 years, and three additional sentences of 2 to 4 years to run concurrently with each other and the other sentences. He commenced this habeas corpus proceeding asserting that his sentence is illegal on double jeopardy grounds. Supreme Court denied the application without a hearing, and petitioner now appeals.

It is well settled that habeas corpus relief is not available where the petitioner raises an issue that was or could have been advanced on direct appeal or in a postjudgment motion pursuant to CPL article 440 (see People ex rel. Robinson v Superintendent of Clinton Correctional Facility, 8 AD3d 794, 794 [2004], lv dismissed and denied 3 NY3d 700 [2004], cert denied — US —, 125 S Ct 1081 [2005]; People ex rel. Jackson v McGinnis, 251 AD2d 731, 731 [1998], appeal dismissed and lv denied 92 NY2d 913 [1998]). Petitioner previously appealed the judgment of conviction and could have challenged the legality of his sentence at that time (People v Warren, 280 AD2d 75 [2001]). Moreover, his CPL article 440 motion to vacate the sentence upon the same basis now raised was denied. Accordingly, the application for the writ of [*2]habeas corpus was properly denied. In any event, our review of the record convinces us that petitioner's sentence was legally imposed.

Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.