Tullis v. Kelly

Judgment unanimously affirmed. Memorandum: Special Term properly dismissed the petition seeking a writ of habeas corpus because it failed to comply with the procedural requirements of CPLR 7002 (c) (see, People ex rel. Artese v New York State Bd. of Parole, 54 AD2d 1047; People ex rel. Kagan v La Vallee, 49 AD2d 986). In addition, habeas corpus is not an appropriate remedy. The contentions raised by petitioner could have been reviewed on his direct appeal or on a motion brought pursuant to CPL article 440 in the court of conviction (see, People ex rel. Goss v Smith, 69 NY2d 727, affg 116 AD2d 968; People ex rel. Milwood v Kuhlmann, 136 AD2d 784; People ex rel. Nelson v Scully, 119 AD2d 709; People ex rel. Brady v Scully, 111 AD2d 419, Iv denied 65 NY2d 609; People ex rel. Myers v Dalsheim, 97 AD2d 447, Iv denied 61 NY2d 601). Although the record does not identify each of the issues that defendant raised on his direct appeal of the judgment of conviction, defendant had the opportunity to advance the present contentions at that time. Moreover, the facts of this case do not "indicate a violation of petitioner's] fundamental constitutional rights such as to warrant a departure from the traditional orderly procedure” (People ex rel. Thomas v LeFevre, 102 AD2d 925; see also, People ex rel. Keitt v McMann, 18 NY2d 257; cf., People ex rel. Culhane v Sullivan, 139 AD2d 315, 317-318). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — habeas corpus.) Present — Dillon, P. J., Callahan, Balio, Lawton and Davis, JJ.