LEWIS, NATHAN v. GRAHAM, HAROLD D.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [634] KAH 11-00852 PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ. THE PEOPLE OF THE STATE OF NEW YORK EX REL. NATHAN LEWIS, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT. ADAM H. VAN BUSKIRK, AURORA, FOR PETITIONER-APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI OF COUNSEL), FOR RESPONDENT-RESPONDENT. Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered March 7, 2011 in a proceeding pursuant to CPLR article 70. The judgment granted the motion of respondent to dismiss and dismissed the petition for a writ of habeas corpus. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus. We conclude that Supreme Court properly dismissed the petition. Habeas corpus relief is unavailable because petitioner’s contention in support of the petition “could have been, or [was], raised on direct appeal or by a motion pursuant to CPL article 440” (People ex rel. Mills v Poole, 55 AD3d 1289, 1290 , lv denied 11 NY3d 712 ; see People ex rel. Robinson v Graham, 68 AD3d 1706 , lv denied 14 NY3d 706 ). “Habeas corpus relief also is unavailable because petitioner would not be entitled to immediate release from custody even in the event that his contention[] had merit” (People ex rel. Almodovar v Berbary, 67 AD3d 1419, 1420 , lv denied 14 NY3d 703 ; see People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648, 649 ). Finally, “[b]ecause the petition lacked any justiciable basis upon which a writ of habeas corpus could be sustained, the court did not abuse its discretion in denying petitioner’s application for assigned counsel” (People ex rel. Gloss v Costello, 309 AD2d 1160, 1161 , lv denied 1 NY3d 504 [internal quotation marks omitted]; see People ex rel. Hinton v Graham, 66 AD3d 1402, 1402 , lv denied 13 NY3d 934 , rearg denied 14 NY3d 795 ). Entered: June 8, 2012 Frances E. Cafarell Clerk of the Court