People ex rel. Tislon v. Rock

1607 Appeal from a judgment of the Supreme Court (Pritzker, J.), entered February 2, 2010 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. In 1998, petitioner was convicted of, among other things, burglary in the second degree and was sentenced as a persistent violent felony offender to 16 years to life in prison. His conviction was thereafter affirmed on appeal (People v Tislon, 279 AD2d 488 [2001], lv denied 96 NY2d 807 [2001]). Petitioner brought the instant proceeding for a writ of habeas corpus asserting that his detention is illegal due to the unconstitutionality of the statute under which he was convicted. Supreme Court denied the petition without a hearing, resulting in this appeal. We affirm. Habeas corpus relief is unavailable where a claim could have been raised on direct appeal or in a CPL article 440 motion (see People ex rel. Brown v Artus, 64 AD3d 1064, 1064 [2009], lv denied 13 NY3d 709 [2009]; People ex rel. Howard v Rock, 61 AD3d 1230, 1230 [2009], lv denied 13 NY3d 702 [2009]). In view of petitioner’s failure to take advantage of the appropriate avenues for asserting his constitutional claim and given the absence of circumstances warranting a departure from traditional orderly procedure, we conclude that Supreme Court properly denied the application (see People ex rel. Brown v Artus, 64 AD3d at 1064; People ex rel. Silverio v Miller, 283 AD2d 702, 703 [2001]). Mercure, J.P, Rose, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.