People ex rel. Fulton v LaValley

People ex rel. Fulton v LaValley 2012 NY Slip Op 07913 Decided on November 21, 2012 Appellate Division, Third 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 and Entered: November 21, 2012
513362

[*1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALVIN FULTON, Appellant,

v

THOMAS LaVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.

Calendar Date: September 26, 2012
Before: Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ.


Alvin Fulton, Dannemora, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Marlene O. Tuczinski of counsel), for respondent.
Leslie E. Swift, District Attorney, Rochester (Sandra
Doorley of counsel).


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Muller, J.), entered November 3, 2011 in Clinton County, which, in a proceeding pursuant to CPLR article 70, granted respondent's motion to dismiss the petition.

Petitioner, who currently is serving a 25-year prison term pursuant to his 2002 conviction of course of sexual conduct against a child in the first degree (People v Fulton, 13 AD3d 1217 [2004], lvs denied 4 NY3d 827, 830, 835 [2005]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus contending, as in a prior appeal before this Court (see People ex rel. Fulton v Lape, 61 AD3d 1227 [2009], appeal dismissed 13 NY3d 766 [2009], cert denied ___ US ___, 130 S Ct 1291 [2010]), that, among other things, the trial court lacked subject matter jurisdiction over the matter. Respondent moved to dismiss the petition on various grounds and Supreme Court granted the motion, prompting this appeal.

We affirm. "Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are [*2]jurisdictional in nature" (People ex rel. Burr v Rock, 93 AD3d 977, 977 [2012], lv denied 19 NY3d 806 [2012] [citations omitted]; see People ex rel. Lainfiesta v Lape, 83 AD3d 1303, 1303 [2011], lv denied 17 NY3d 708 [2011], lv dismissed 19 NY3d 1007 [2012]; People ex rel. Fulton v Lape, 61 AD3d at 1227-1228). Under these circumstances, Supreme Court properly granted respondent's motion to dismiss.

Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.