People ex rel. Jones v. Martuscello

Appeal from a judgment of the Supreme Court (Platkin, J.), entered September 26, 2012 in Greene County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner was convicted in 1983 of attempted criminal possession of a weapon in the third degree, and was sentenced to a prison term of 2 to 4 years. He was next convicted of criminal possession of a weapon in the third degree in 1987, and was sentenced to 21h to 5 years in prison. Petitioner was then convicted of robbery in the first degree and sodomy in the first degree in 1990, adjudicated a persistent violent felony offender, and sentenced to an aggregate prison term of 14 years to life (People v Jones, 188 AD2d 364 [1992], lv denied 81 NY2d 972 [1993]). Believing that various defects existed with regard to the imposition and calculation of the various sentences, as well as that he had been the victim of harassment by prison officials, petitioner commenced the present CPLR article 70 proceeding. 1185 Supreme Court denied the petition without a hearing, prompting this appeal. We affirm. Supreme Court properly rejected petitioner’s challenge to his persistent violent felony offender status, as he has unsuccessfully attacked that status upon both his direct appeal from the judgment of conviction and in a subsequent CPL article 440 motion (see People ex rel. Tislon v Rock, 84 AD3d 1606, 1607 [2011], lv denied 17 NY3d 712 [2011]; Matter of Caroselli v Goord, 269 AD2d 706, 706 [2000], lv denied 95 NY2d 754 [2000]). Petitioner faces the possibility of life imprisonment as a result of that status and, accordingly, habeas corpus relief is unavailable on his remaining claims because he is not entitled to immediate release (see People ex rel. Hall v Rock, 71 AD3d 1303, 1304 [2010], appeal dismissed 14 NY3d 882 [2010], lv denied 15 NY3d 703 [2010]; Matter of Caroselli v Goord, 269 AD2d at 706). Lahtinen, J.P., McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.