People ex rel. Lopez v People

People ex rel. Lopez v People 2010 NY Slip Op 09601 [79 AD3d 1555] December 30, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

The People of the State of New York ex rel. Eliot Lopez, Appellant, v The People of The State of New York et al., Respondents.

—[*1] Eliot Lopez, Comstock, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondents.

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered April 5, 2010 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1995, petitioner was convicted of six counts of murder in the second degree and was sentenced to an aggregate term of 30 years to life in prison. His convictions were subsequently upheld on appeal (People v Lopez, 262 AD2d 109 [1999], lv denied 93 NY2d 1003 [1999]) and his CPL article 440 motion was denied, as was his application for federal habeas corpus relief (Lopez v Walker, 239 F Supp 2d 368, 371-375 [2003]). Thereafter, petitioner brought the instant application for a writ of habeas corpus pursuant to CPLR article 70. Supreme Court denied the application without a hearing, resulting in this appeal.

Petitioner argues that his due process rights were violated because he was not afforded notice of his right to testify before the grand jury in accordance with CPL 190.50. However, inasmuch as this claim could have been raised on direct appeal or in petitioner's CPL article 440 motion, habeas corpus relief is not the appropriate remedy (see People ex rel. Jackson v Rock, 67 AD3d 1080 [2009], lv denied 14 NY3d 704 [2010]; People ex rel. Chapman v LaClair, 64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]). In any event, even if the claim had merit, habeas corpus relief is unavailable inasmuch as it would not entitle petitioner to immediate [*2]release from prison (see People ex rel. Hall v Rock, 71 AD3d 1303 [2010], appeal dismissed 14 NY3d 882 [2010], lv denied 15 NY3d 703 [2010]; People ex rel. Maye v Schenectady County Ct., 63 AD3d 1471 [2009]). Accordingly, Supreme Court properly denied petitioner's application.

Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.