People ex rel. William F. Bonez v Calvin West

People ex rel. Bonez v West 2005 NY Slip Op 07886 [22 AD3d 992] October 27, 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. William F. Bonez, Appellant, v Calvin West, as Superintendent of Elmira Correctional Facility, Respondent.

—[*1]Appeal from a judgment of the Supreme Court (Rumsey, J.), entered September 23, 2004 in Chemung 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 convicted in 1981 of murder in the second degree and criminal possession of a weapon in the second degree. Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging defects in the pretrial hearing. Supreme Court denied the petition, as well as petitioner's subsequent motion for reargument. Petitioner now appeals.

We affirm. Because petitioner could have raised this issue on direct appeal or in the context of a CPL article 440 motion, habeas corpus is inappropriate (see People ex rel. LeBron v Herbert, 287 AD2d 917 [2001], lv denied 97 NY2d 609 [2002]). Moreover, even if successful, petitioner would not be entitled to immediate release, making a writ of habeas corpus unavailable (see People ex rel. Woodard v Senkowski, 305 AD2d 879 [2003], lv denied 100 NY2d 511 [2003]). [*2]

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.