People ex rel. Abdul-Aziz v Marshall

People ex rel. Abdul-Aziz v Marshall 2009 NY Slip Op 09263 [68 AD3d 902] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York ex rel. Khalil Abdul-Aziz, Formerly Known as Robert Collins, Appellant,
v
Luis R. Marshall, Respondent.

—[*1] Khalil Abdul-Aziz, formerly known as Robert Collins, Ossining, N.Y., appellant pro se.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and Laura R. Johnson of counsel), for respondent.

In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Cohen, J.), entered September 30, 2008, 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" (People ex rel. Dushain v Ercole, 64 AD3d 669 [2009]; see People ex rel. Barnes v Fischer, 303 AD2d 526 [2003]). "Further, where, as here, a petitioner presents no fundamental constitutional or statutory claim that was not already reviewed on direct appeal or on his CPL 440.10 motion and would warrant departure from traditional, orderly process, the petition is procedurally barred" (People ex rel. Almeyda v Schultz, 18 AD3d 582, 582-583 [2005] [internal quotation marks omitted]). Therefore, the Supreme Court properly denied the petition and dismissed the proceeding without conducting a hearing. Dillon, J.P., Florio, Miller and Angiolillo, JJ., concur.