People v Curcio

[*1] People v Curcio 2005 NY Slip Op 51105(U) Decided on May 27, 2005 Supreme Court, Bronx County Massaro, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 27, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK, ex rel. MATTHEW WILLIAMS, Petitioner,

against

Peter Curcio, Warden, A.R.D.C. Correctional Facility, Defendant.



4354/2003



For the People of the State of New York

HONORABLE ROBERT T. JOHNSON

District Attorney of Bronx County, New York

By: BRIAN J. POLLOCK, ESQ.

Assistant District Attorney

For Matthew Williams

Pro se

Dominic R. Massaro, J.

Relator was convicted of seven counts of Promoting Prostitution in the Second Degree (Penal Law § 230.30 [1]) and one count of Rape in the Third Degree (Penal Law § 130.25 [3]). He was thereafter sentenced to concurrent indeterminate terms of imprisonment of from four to twelve years for each of the Promoting Prostitution charges as well as a consecutive indeterminate term of imprisonment of from one and one-third to four years for the Rape charge. After filing a notice of appeal in this matter and having both his applications for bail pending appeal and poor person's relief denied, Relator moved in the Appellate Division, First Department for a writ of habeas corpus and for poor person's relief in the litigation of said petition. On April 7, 2005, the First Department granted said petition to the extent of issuing the writ and transferring the habeas corpus proceeding to this Court. After due consideration, the petition is dismissed.

Petitioner's Motion

Relator claims that his detention is illegal and he should be released because his guilt of seven counts of Promoting Prostitution in the Second Degree was not established by legally sufficient evidence and his counsel was ineffective. Regarding the second claim, Relator specifically alleges that his counsel: was intoxicated; refused to subpoena exculpatory witnesses; was conflicted; and failed to move for a Mapp/Dunaway (see Mapp v. Ohio, 367 U.S. 643, 81 [*2]S.Ct. 1684, 6 L. Ed. 2d 1081 [1961]; Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 [1979]) hearing, which would have been successful.

The People counter that the petition is procedurally barred because a writ of habeas corpus is to be used solely when there is no other vehicle available to address a petitioner's claims and here, Relator's claims can be adequately addressed on direct appeal or in a CPL § 440.10 motion. In addition, the People argue that Relator's claims only entitle him to a new trial, and not immediate release, and, therefore, they are not cognizable by way of a petition for a writ of habeas corpus.

Discussion

It is well settled that: The writ of habeas corpus is the traditional process devised centuries ago to safeguard the rights of persons, deprived of liberty, to challenge in the courts the legality of their detention (Hoff v. State of New York, , 279 NY 490 [1939]). . . . [However,] [a]n appeal to a higher court is ordinarily the appropriate corrective process for error at the trial and appearing in the record; [and] a motion to vacate the judgment and for a new trial is ordinarily the appropriate corrective process for defect not appearing on the record or where for any other reason an appeal would not furnish a remedy.

Matter of Morhous v. Supreme Court of the State of New York, 293 NY 131, 135, 140 (1944). See also People ex rel. Keitt v. McMann, 18 NY2d 257, 262 (1966) ("Departure for traditional proceedings, such as appeal, should be permitted only when dictated . . . by reason of practicality and necessity. . . . [W]here review of a mere error, allegedly committed at the trial, is sought, . . . the writ may not be utilized as a substitute for appeal or to again review the errors already passed on in an earlier appeal."); People ex rel. Goss v. Smith, 116 AD2d 968 (4th Dept. 1986) ("A writ of habeas corpus is inappropriate to review issues which could have been raised on appeal but were not."), aff'd, 69 NY2d 727 (1987); People ex rel. Johnson v. Lacy, 243 AD2d 915 (3rd Dept. 1997) ("Habeas corpus relief is unavailable where, as here, petitioner's claim has been or may be raised on his direct appeal or in a postjudgment motion pursuant to CPL article 440."), lv. denied, 91 NY2d 806 (1998); People ex rel. Benbow v. Scully, 189 AD2d 844 (2nd Dept. 1993); People ex rel. McNair v. Bantum, 123 AD2d 800 (2nd Dept. 1986), app. dismissed, 69 NY2d 820 (1987), rearg. denied, 69 NY2d 985 (1987); People ex rel. Nelson v. Scully 119 AD2d 709 (2nd Dept. 1986), lv. denied, 69 NY2d 602 (1986).

In utilizing a petition for a writ of habeas corpus to review claimed errors in a criminal proceeding, the Court of Appeals explained in People ex rel. Douglas v. Vincent, 67 AD2d 587, 589-90 (2nd Dept. 1979), aff'd, 50 NY2d 901 (1980), that: [T]o permit . . . review [of] . . . a judgment of conviction . . . after the conviction has been affirmed by the Appellate Division, . . . and leave to appeal has been denied by the Court of Appeals, and then to direct that the petitioner be resentenced . . . so as to give him a second opportunity to appeal to the [Appellate Division], is [*3]highly disruptive of traditional orderly procedure and should not be countenanced unless dictated by "practicality and necessity" (see People ex rel. Keitt, supra, at 262).

Here, Relator filed a notice of appeal, which is still pending before the Appellate Division, First Department. In perfecting said appeal, Relator has a vehicle by which his weight/legal sufficiency of the evidence claim as well as the portions of his ineffective assistance of counsel claim which appear in the record can be addressed. The remainder of that latter claim can be addressed by way of a CPL § 440.10 motion to vacate the judgment of conviction. Therefore, Relator has an avenue to address his current contentions and there is no reason to disrupt the traditional orderly procedure by entertaining this writ.

In addition, Relator "is not entitled to habeas corpus relief because the only remedy to which he would be entitled would be a new trial or new appeal, and not a direction that he be immediately released from custody." People ex rel. Kaplan v. Commission of Corrections of the City of New York, 60 NY2d 648, 649 (1983). See generally People ex rel. Douglas v. Vincent, 50 NY2d 901, 903 (1980).

Lastly, Relator's motion for poor person's relief is denied as this is a civil and not a criminal matter, (see CPLR Article 70; Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 [1985] [holding that a defendant's right to counsel is "limited to the first appeal as of right"]; People v. Richardson, 159 Misc 2d 167 [Supreme Ct. Kings Cty. 1993] [holding that historically, New York has not extended the right to counsel to matters in which assigned counsel is not mandated by statute or by the New York State Constitution]), and, in any event, the Appellate Division, First Department has already denied Relator's request for poor person's relief. Moreover, the only statutory authority for obtaining poor person relief in a criminal proceeding is found in Criminal Procedure Law § 460.70 (1), which provides that when an appeal is taken for poor persons, "the appellate court shall where such is necessary for perfection of the appeal, order that the criminal court furnish a reproduced copy of such transcripts to the defendant or his counsel" (emphasis added). In light thereof, there is no basis for this Court to provide Relator with such relief.

ORDERED, that the Petition for a writ of habeas corpus is dismissed.

The foregoing constitutes the decision and opinion of the Court.

Dated: Bronx, New York

May 27, 2005

DOMINIC R. MASSARO,

Justice of the Supreme Court