Opinion
2014-01-15
The People, etc., ex rel. Clifton GORDON, appellant, v. Philip D. HEATH, etc., respondent.
Clifton Gordon, Comstock, N.Y., appellant pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and Valerie Figueredo of counsel), for respondent.
Clifton Gordon, Comstock, N.Y., appellant pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and Valerie Figueredo of counsel), for respondent.
In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Warhit, J.), dated May 12, 2011, which, without a hearing, denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, without costs or disbursements.
Generally, “[a] writ of habeas corpus may not be used for review of issues that have been, or could have been, reviewed on direct appeal or by a postjudgment motion addressed to the court in which an underlying judgment of conviction was rendered” (People ex rel. Dushain v. Ercole, 64 A.D.3d 669, 669, 881 N.Y.S.2d 899; see People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 263, 273 N.Y.S.2d 897, 220 N.E.2d 653; People ex rel. Bazil v. Marshall, 77 A.D.3d 982, 982, 910 N.Y.S.2d 494). However, “cases may arise where the right to invoke habeas corpus may take precedence over ‘procedural orderliness and conformity’ ” (People ex rel. Keitt v. McMann, 18 N.Y.2d at 262, 273 N.Y.S.2d 897, 220 N.E.2d 653, quoting People v. Schildhaus, 8 N.Y.2d 33, 36, 201 N.Y.S.2d 97, 167 N.E.2d 640; see People ex rel. Pearson v. Garvin, 211 A.D.2d 690, 691, 622 N.Y.S.2d 464). “Departure from traditional orderly proceedings, such as appeal, should be permitted only when dictated ... by reason of practicality and necessity” (People ex rel. Keitt v. McMann, 18 N.Y.2d at 262, 273 N.Y.S.2d 897, 220 N.E.2d 653; see People v. Schildhaus, 8 N.Y.2d at 36, 201 N.Y.S.2d 97, 167 N.E.2d 640; People ex rel. Rosenfeld v. Sposato, 87 A.D.3d 665, 665, 928 N.Y.S.2d 350; People ex rel. Kuby v. Warden, Brooklyn House of Detention, 305 A.D.2d 339, 339, 757 N.Y.S.2d 889).
Here, the petitioner's contention that his sentence was not properly pronounced could have been raised on his direct appeal from the judgment of conviction ( see generally People ex rel. Bazil v. Marshall, 77 A.D.3d at 983, 910 N.Y.S.2d 494). Furthermore, the circumstances of this case do not present a situation where “[d]eparture from traditional orderly proceedings, such as appeal, should be permitted ... by reason of practicality and necessity” (People ex rel. Keitt v. McMann, 18 N.Y.2d at 262, 273 N.Y.S.2d 897, 220 N.E.2d 653; see People ex rel. Allen v. Maribel, 107 A.D.3d 831, 832, 966 N.Y.S.2d 685). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. MASTRO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.