People ex rel. Rosado v. Miles

Harvey, J. Appeal from a judgment of the Supreme Court (Swartwood, J.), entered March 30, 1987 in Chemung County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Defendant was convicted, following a jury trial, of the crimes of rape in the first degree, robbery in the first degree and assault in the second degree. He was sentenced to concurrent terms of imprisonment of 12 Vi to 25 years on the rape and robbery convictions, which were to run consecutively with a 3ti-to-7-year term for the assault conviction. The judgment of conviction was affirmed without opinion by the Appellate Division, First Department (65 AD2d 679) and leave to appeal was denied by the Court of Appeals (46 NY2d 844). Petitioner initiated this proceeding alleging that his conviction and sentence were tainted by numerous errors. Supreme Court denied the application for a writ of habeas corpus. This appeal followed. Habeas corpus is not an appropriate remedy to raise issues which could have been advanced on direct appeal or in a motion pursuant to CPL article 440 (People ex rel. Milwood v Kuhlmann, 136 AD2d 784; People ex rel. Davis v Coombe, 97 AD2d 667). Here, the facts petitioner asserts in support of his application were known at the time of his direct appeal or could have been asserted in a CPL article 440 motion. The allegations in the petition do not merit departure from traditional orderly procedure (see, People ex rel. Keitt v McMann, 18 NY2d 257). We further note that based upon the papers before this court, petitioner’s arguments are, as determined by Supreme Court, meritless. Accordingly, the judgment of Supreme Court should be affirmed. Judgment affirmed, without costs. Mahoney, P. J., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.