People ex rel. Adams v Cunningham

People ex rel. Adams v Cunningham 2015 NY Slip Op 09146 Decided on December 10, 2015 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: December 10, 2015
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[*1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. JERRY ADAMS, Appellant,

v

ROBERT CUNNINGHAM, as Superintendent of Woodbourne Correctional Facility, Respondent.

Calendar Date: October 27, 2015
Before: Lahtinen, J.P., Garry, Lynch and Clark, JJ.

Jerry Adams, Woodbourne, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered November 21, 2013 in Sullivan County, which, in a proceeding pursuant to CPLR article 70, denied petitioner's motion to reargue.

In 1988, petitioner was convicted after a jury trial of sodomy in the first degree, robbery in the first and second degrees and criminal possession of stolen property and sentenced, as a second violent felony offender, to a prison term of 25 to 50 years (People v Adams, 178 AD2d 536 [1991], lv denied 79 NY2d 943 [1992]). His subsequent application for a writ of error coram nobis was denied (People v Adams, 223 AD2d 649 [1996]) and, in

1994 and 2012, his motions to vacate the judgment of conviction pursuant to CPL article 440 were denied. In 2013, petitioner commenced this proceeding for a writ of habeas corpus alleging, among other things, that he had been deprived of various constitutional rights in the criminal action, including the right to the effective assistance of counsel, and challenging the evidence adduced therein. Supreme Court denied petitioner's application and dismissed the petition by judgment entered October 1, 2013. Petitioner thereafter moved to reargue, which the court denied in a judgment entered November 21, 2013. Petitioner now appeals from the [*2]judgment denying his motion to reargue.[FN1]

No appeal lies from the denial of a motion to reargue (see People ex rel. Timothy I. v Campbell, 95 AD3d 1497 [2012]; Putney v People, 94 AD3d 1193, 1195 [2012], appeal dismissed 19 NY3d 1020 [2012], lv dismissed and denied 21 AD3d 909 [2013]). Further, petitioner's motion was not identified as, and cannot be viewed as, a motion to renew given that he did not allege "new facts" not previously offered "that would change the prior determination" or provide "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [2], [3]; see Gonzalez v L'Oreal USA, Inc., 92 AD3d 1158, 1160 [2012], lv dismissed 19 NY3d 874 [2012]). Thus, petitioner's appeal from the judgment denying reargument must be dismissed.

Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

Footnotes

Footnote 1: Petitioner did not file a notice of appeal from the judgment entered on October 1, 2013 and, accordingly, it is not before the Court on this appeal.