People ex rel. Hilbert Tunstall v David L. Miller

People ex rel. Tunstall v Miller 2005 NY Slip Op 09372 [24 AD3d 921] December 8, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York ex rel. Hilbert Tunstall, Appellant, v David L. Miller, as Superintendent of Eastern Correctional Facility, Respondent.

—[*1]Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered March 11, 2005 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.

Petitioner is an inmate currently serving concurrent prison terms of 2 to 4 years and 15 years, respectively, upon his 1998 conviction of criminal mischief in the third degree and burglary in the second degree. His conviction was affirmed by this Court on appeal (People v Tunstall, 278 AD2d 585 [2000], lv denied 96 NY2d 788 [2001]) and his federal habeas corpus petition was denied. Thereafter, petitioner commenced this habeas corpus proceeding seeking to be released from prison on the basis that his trial counsel failed to effectively represent him during the suppression hearing. Supreme Court denied the petition without a hearing and this appeal ensued.

We affirm. Petitioner's claim is of the type more properly raised on direct appeal from the judgment of conviction or in a CPL article 440 motion rather than in the context of a habeas corpus proceeding (see People ex rel. Hunter v Buffardi, 15 AD3d 736, 737 [2005]; People ex rel. Smith v Burge, 11 AD3d 907, 908 [2004], lv denied 4 NY3d 701 [2004]). In fact, petitioner [*2]concedes that he raised this argument in his pro se brief on direct appeal; this Court found petitioner's pro se contentions "meritless" (People v Tunstall, supra at 588). In any event, even if petitioner were to prevail on the merits, he 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]). Consequently, habeas corpus relief is not available and Supreme Court properly denied the petition.

Cardona, P.J., Mercure, Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.