People ex rel. Caroselli v. Goord

—Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered April 20, 1999 in Washington County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner, having been found guilty of attempted robbery in the first degree, commenced this proceeding for a writ of habeas corpus contending that the People failed to legally establish the attempted robbery charge and that he was denied due process and effective assistance of counsel. Supreme Court dismissed the petition and we affirm. Given that the issues could have been and were raised on a direct appeal or in a motion pursuant to CPL 440.10, we find that habeas corpus relief is unavailable (see, People ex rel. Charles v DeAngelo, 263 AD2d 796). Moreover, since these issues were previously raised by petitioner on appeal, this proceeding is barred by collateral estoppel (see, People ex rel. Johnson v Walker, 262 AD2d 1005, lv denied 93 NY2d 818). Mercure, J. P., Crew III, Spain, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.