People ex rel. Smith v Graham

People ex rel. Smith v Graham 2013 NY Slip Op 06123 Released on September 27, 2013 Appellate Division, Fourth 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.

Released on September 27, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
854 KAH 12-00565

[*1]THE PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES SMITH, PETITIONER-APPELLANT,

v

HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered December 21, 2011 in a proceeding pursuant to CPLR article 70. The judgment denied the petition.


THE STRODS LAW FIRM, AUBURN (LISA A. BLAIR OF COUNSEL), FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus. In support thereof, he contended, inter alia, that he was improperly sentenced as a persistent violent felony offender, the evidence is legally insufficient to support the conviction of sodomy in the first degree (Penal Law former § 130.50 [1]), and he was denied his right to effective assistance of counsel. We conclude that Supreme Court properly denied the petition. Those contentions could have been raised on direct appeal or by a motion pursuant to CPL article 440, and thus habeas corpus relief is unavailable (see People ex rel. Donato v Kirkpatrick, 73 AD3d 1450, 1451, lv denied 15 NY3d 707; People ex rel. Mills v Poole, 55 AD3d 1289, 1290, lv denied 11 NY3d 712).
Entered: September 27, 2013
Frances E. Cafarell
Clerk of the Court