People ex rel. Burr v Rock

People ex rel. Burr v Rock 2012 NY Slip Op 07744 Decided on November 15, 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 15, 2012
514157

[*1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. DAVID A. BURR, Appellant,

v

DAVID A. ROCK, as Superintendent of Upstate Correctional Facility, Respondent.

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


David A. Burr, Auburn, appellant pro se.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 14, 2012 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that the certificate of conviction and commitment order authorizing the execution of his sentence are defective in that they are inconsistent with the sentencing minutes. Supreme Court denied the petition and we affirm. A review of the documents at issue disclose no deficiency or substantive distinction regarding the indeterminate sentence imposed. Moreover, petitioner would not be entitled to immediate release even if successful and, therefore, habeas corpus is unavailable (see Matter of Frazier v Greene, 10 AD3d 743 [2004]; People ex rel. Burr v Clark, 278 AD2d 938 [2000], lv denied 96 NY2d 707 [2001]).

Peters, P.J., Spain, Malone Jr., Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.