Opinion
533407
03-10-2022
The PEOPLE of the State of New York EX REL. Michael N. KELSEY, Appellant, v. Donna LEWIN, as Superintendent of Hudson Correctional Facility, Respondent.
Michael N. Kelsey, Hudson, appellant pro se. Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Michael N. Kelsey, Hudson, appellant pro se.
Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Garry, P.J., Aarons, Pritzker, Ceresia and McShan, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Koweek, J.), entered April 5, 2021 in Columbia County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is currently in prison based on his 2016 convictions of sexual abuse in the first degree, attempted sexual abuse in the first degree, forcible touching and two counts of endangering the welfare of a child. Petitioner's judgment of conviction was affirmed on direct appeal ( People v. Kelsey, 174 A.D.3d 962, 107 N.Y.S.3d 150 [2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 671, 137 N.E.3d 41 [2019], cert denied ––– U.S. ––––, 141 S. Ct. 2607, 209 L.Ed.2d 738 [2021] ) and his subsequent postconviction motions, including a writ of error coram nobis and CPL 440.10 motion, were denied ( People v. Kelsey, 2020 N.Y. Slip Op. 61403[U], 2020 WL 401566 ). Petitioner thereafter commenced this CPLR article 70 proceeding seeking a writ of habeas corpus, alleging that the statutes under which he was convicted are unconstitutionally vague, that the indictment and conviction for attempted sexual abuse upon a physically helpless person is a legal impossibility and that there was legally insufficient evidence of forcible compulsion to sustain the conviction of forcible touching. Supreme Court dismissed the petition, and petitioner appeals.
As correctly noted by Supreme Court, "habeas corpus relief is unavailable where, as here, petitioner's claims were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature" ( People ex rel. Johnson v. Uhler, 191 A.D.3d 1065, 1066, 141 N.Y.S.3d 544 [2021] [internal quotation marks, brackets and citations omitted], lv denied 37 N.Y.3d 902, 2021 WL 2151839 [2021] ). "[T]he writ [of habeas corpus] may not be utilized as a substitute for appeal or to again review errors already passed on in an earlier appeal" ( People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 220 N.E.2d 653 [1966] ). As we discern no "reason of practicality or necessity" here that warrants a departure from traditional orderly procedure, we find that Supreme Court properly dismissed petitioner's request for habeas corpus relief ( id. ; see People ex rel. Johnson v. Uhler, 191 A.D.3d at 1067, 141 N.Y.S.3d 544 ; People ex rel. Smythe v. Miller, 182 A.D.3d 894, 894, 120 N.Y.S.3d 865 [2020], appeal dismissed and lv. denied 35 N.Y.3d 1056, 129 N.Y.S.3d 35, 152 N.E.3d 815 [2020] ). We have reviewed petitioner's remaining contentions and find them to be unpersuasive.
Garry, P.J., Aarons, Pritzker, Ceresia and McShan, JJ., concur.
ORDERED that the judgment is affirmed, without costs.