People ex rel. Torres v Graham

People ex rel. Torres v Graham 2018 NY Slip Op 08877 Decided on December 21, 2018 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.

Decided on December 21, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
1454 KAH 18-00046

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

v

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

ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-APPELLANT.

BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered June 13, 2017 in a habeas corpus proceeding. The judgment, among other things, dismissed the petition.

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

Memorandum: Petitioner appeals from a judgment that, among other things, dismissed his habeas corpus petition. He contends that Supreme Court erred in denying him habeas corpus relief without an evidentiary hearing because he made a meritorious initial showing that he was arrested pursuant to an improper "John Doe" warrant that was not subsequently amended to include his name or a description of him. We reject that contention. Insofar as petitioner directs us to testimony in the record of his direct appeal (People v Torres, 129 AD3d 1535 [4th Dept 2015]), or information discovered through a Freedom of Information Law request, habeas corpus relief is not appropriate because he could have raised his contention on direct appeal or in a CPL article 440 motion (see People ex rel. Frederick v Superintendent, Auburn Corr. Facility, 156 AD3d 1468, 1468 [4th Dept 2017], lv denied 31 NY3d 908 [2018]; People ex rel. Haddock v Dolce, 149 AD3d 1593, 1593 [4th Dept 2017], lv denied 29 NY3d 917 [2017]; see generally People v Rossborough, 122 AD3d 1244, 1245 [4th Dept 2014]). We have considered petitioner's remaining arguments and conclude that they do not warrant modification or reversal of the judgment.

Entered: December 21, 2018

Mark W. Bennett

Clerk of the Court