People ex rel. Dushain v Ercole

People ex rel. Dushain v Ercole 2009 NY Slip Op 05881 [64 AD3d 669] July 14, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 2, 2009

The People of the State of New York ex rel. Carl Dushain, Appellant,
v
Robert E. Ercole, Respondent.

—[*1] Carl Dushain, Stormville, N.Y., appellant pro se.

Robert M. Morgenthau, District Attorney, New York, N.Y. (Eleanor J. Ostrow of counsel), for respondent.

In a habeas corpus proceeding pursuant to CPLR article 70, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Brands, J.), dated November 7, 2007, which, without a hearing, denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

A writ of habeas corpus may not be used for review of issues that have been, or could have been, reviewed on direct appeal or by a postjudgment motion addressed to the court in which an underlying judgment of conviction was rendered (see People ex rel. Almeyda v Schultz, 18 AD3d 582 [2005]; People ex rel. Barnes v Fischer, 303 AD2d 526 [2003]; People ex rel. Pearson v Garvin, 211 AD2d 690, 691 [1995]; People ex rel. Moore v Scully, 189 AD2d 845 [1993]; People ex rel. Benbow v Scully, 189 AD2d 844 [1993]). The allegations in the petition do not warrant departure from traditional orderly procedure (see People ex rel. Keitt v McMann, 18 NY2d 257, 262 [1966]; see also CPL 210.30 [6]). Spolzino, J.P., Angiolillo, Chambers and Lott, JJ., concur.