People ex rel. David Safran v Gary H. Filion

People ex rel. Safran v Filion 2005 NYSlipOp 07753 October 20, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

The People of the State of New York ex rel. David Safran, Appellant, v Gary H. Filion, as Superintendent of Coxsackie Correctional Facility, Respondent. (And Three Other Related Proceedings.)

—[*1]Appeals from three judgments of the Supreme Court (Lalor, J.), entered August 17, 2004, November 8, 2004 and November 12, 2004 in Greene County, which dismissed petitioner's applications, in four proceedings pursuant to CPLR article 70, without a hearing.

Petitioner was charged with two counts of assault in the first degree and one count of reckless endangerment in the first degree. After criminal proceedings had commenced, he pleaded guilty to assault in the second degree in full satisfaction of the indictment. In August 2002, he was sentenced to three years in prison, to be followed by an 18-month period of postrelease supervision. Thereafter, petitioner made a number of unsuccessful motions pursuant to CPL article 440 to vacate the judgment of conviction. In addition, he commenced four proceedings pursuant to CPLR article 70 seeking habeas corpus relief. Each of these proceedings was dismissed by Supreme Court without a hearing. Petitioner appeals such dismissals, which have been consolidated.

We note that all of the assertions raised in petitioner's applications involve matters that could have been raised on direct appeal or in the context of a CPL article 440 motion. [*2]Consequently, they are not the proper subject of a habeas corpus proceeding (see People ex rel. Hunter v Buffardi, 15 AD3d 736 [2005]; People ex rel. Sacco v Greene, 13 AD3d 1015 [2004], lv denied 4 NY3d 811 [2005]). In any event, even if we were to consider them and conclude that they had merit, petitioner would not be entitled to immediate release from prison (see People ex rel. Burr v Smith, 6 AD3d 841, 841 [2004], lv denied 3 NY3d 605 [2004]). Accordingly, dismissal of the applications was appropriate.

Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ., concur. Ordered that the judgments are affirmed, without costs.