People ex rel. Green v Smith

Decided and Entered: November 2, 2006 99628 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROY GREEN, Appellant, v JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, Respondent. ________________________________ Calendar Date: September 27, 2006 Before: Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ. __________ Roy Green, Wallkill, appellant pro se. Eliot Spitzer, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent. __________ Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 25, 2005 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner was convicted of sexual abuse in the first degree, criminal possession of a weapon in the second degree and four counts of robbery in the first degree. He was sentenced, as a second felony offender, to concurrent prison terms of seven years on the sexual abuse conviction, 15 years on the criminal possession conviction and 24 years on the robbery convictions. Thereafter, he filed a petition for a writ of habeas corpus claiming that because the certificate of conviction was not signed by the sentencing judge, his conviction was not valid and he must be released from prison. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued. We affirm. Inasmuch as petitioner’s challenge to the certificate of conviction could have been raised on direct appeal or in a CPL article 440 motion, habeas corpus is not the appropriate remedy (see People ex rel. Burr v Smith, 6 AD3d 841, 841 [2004], lv denied 3 NY3d 605 [2004]; People ex rel. Burr v Duncan, 289 AD2d 898 [2001], lv denied 97 NY2d 612 [2002]). Moreover, even if he were to prevail on his argument that his certificate of conviction is deficient, petitioner would not be entitled to immediate release from prison and, thus, habeas corpus relief is unavailable (see People ex rel. Burr v Duncan, supra at 898). Accordingly, Supreme Court properly dismissed the petition. Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. ORDERED that the judgment is affirmed, without costs.