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Velez v. Artus

Appellate Division of the Supreme Court of New York, Third Department
Mar 27, 2008
49 A.D.3d 1109 (N.Y. App. Div. 2008)

Opinion

No. 502920.

March 27, 2008.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered June 15, 2007 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Michael-Tony Velez, Dannemora, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Peters, J.P., Spain, Rose, Lahtinen and Malone Jr., JJ.


In 2003, petitioner was sentenced as a persistent violent felony offender to an aggregate prison term of 15 years to life upon his convictions of assault in the second degree (two counts), criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree. His convictions were affirmed upon appeal ( People v Velez, 21 AD3d 262, lv denied 6 NY3d 760) and his subsequent application for a federal writ of habeas corpus was denied ( Velez v Ercole, 2006 WL 2742046, 2006 US Dist LEXIS 71100 [SD NY 2006]). Thereafter, petitioner commenced the instant CPLR article 70 proceeding seeking a writ of habeas corpus, alleging, among other things, that the evidence presented at trial was legally insufficient to support the convictions. Supreme Court denied the application without a hearing, prompting this appeal.

We affirm. Petitioner's claims could have been raised on direct appeal or in a CPL article 440 motion and, thus, are not the proper subjects of a habeas corpus proceeding ( see People ex rel. King v Bennett, 45 AD3d 1015, 1016, lv denied 10 NY3d 703; People ex rel. Washington v Walsh, 43 AD3d 1217, 1217, lv denied 9 NY3d 816). To the extent that petitioner raises certain claims for the first time on appeal, they are not preserved for our review ( see Matter of Woodward v Selsky, 43 AD3d 1209, 1209; People ex rel. Persing v Lacy, 276 AD2d 815, 816 [2000]).

Ordered that the judgment is affirmed, without costs.


Summaries of

Velez v. Artus

Appellate Division of the Supreme Court of New York, Third Department
Mar 27, 2008
49 A.D.3d 1109 (N.Y. App. Div. 2008)
Case details for

Velez v. Artus

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL-TONY VELEZ, Appellant…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 27, 2008

Citations

49 A.D.3d 1109 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 2715
856 N.Y.S.2d 891

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