People ex rel. Vickery v Walsh

People ex rel. Vickery v Walsh 2012 NY Slip Op 07344 Decided on November 8, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 8, 2012
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[*1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANTHONY VICKERY, Appellant,

v

JOSEPH WALSH, as Superintendent of Sullivan Correctional Facility, Respondent.

Calendar Date: September 26, 2012
Before: Peters, P.J., Rose, Spain, Kavanagh and Garry, JJ.


Anthony Vickery, Fallsburg, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Allyson B. Levine of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered August 24, 2011 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, an inmate, made an application for a writ of habeas corpus alleging various constitutional violations and seeking release from prison. Supreme Court signed the writ, which directed petitioner to serve the writ and the petition on, among others, respondent and the Attorney General on or before December 3, 2010. Petitioner failed to do so, and the court subsequently dismissed the petition on jurisdictional grounds, without a hearing, also noting as an alternative ground for denial that petitioner's arguments could have been raised upon a direct appeal from the judgment of conviction or in a collateral motion. Petitioner appeals.

We affirm. There was no showing that petitioner's imprisonment presented an obstacle beyond his control preventing compliance with the service directives and, thus, dismissal for lack of personal jurisdiction was proper (see People ex rel. Watson v Walsh, 7 AD3d 850, 850 [2004]). Further, habeas corpus relief is unavailable where petitioner could have raised his constitutional claims on direct appeal or in a collateral motion (see People ex rel. Brown v Artus, 64 AD3d 1064, 1064 [2009], lv denied 13 NY3d 709 [2009]). [*2]

Peters, P.J., Rose, Spain, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.