People ex rel. Gloss v Murray

People ex rel. Gloss v Murray 2006 NY Slip Op 09771 [35 AD3d 1186] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

the People of the State of New York ex rel. Richard Gloss, Appellant, v Timothy J. Murray, as Superintendent of Gowanda Correctional Facility, Respondent.

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Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Ronald H. Tills, A.J.), entered September 9, 2005. The judgment denied the petition for a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied the petition seeking a writ of habeas corpus. Petitioner contends that he is entitled to immediate release because his original sentence of a term of incarceration of 25 years to life was subsequently modified to a term of incarceration of 12½ to 25 years, and he has been incarcerated in excess of 25 years. Petitioner failed to produce any evidence that his sentence had been modified, however, and thus failed to establish that he is not properly "detained by virtue of the judgment of the court" (People ex rel. Trainor v Baker, 89 NY 460, 465 [1882]). The further contention of petitioner that his original sentence was improper is not properly raised in this proceeding because "[h]abeas corpus relief is not a proper remedy where the issues raised in the petition were, or could have been, raised on direct appeal or by a CPL article 440 motion" (People ex rel. Abdullah v Walker, 199 AD2d 1074, 1074 [1993], lv denied 83 NY2d 752 [1994]; see People ex rel. Spencer v Burge, 307 AD2d 772, 773 [2003]). Present—Hurlbutt, J.P., Gorski, Centra and Green, JJ.