People ex rel. Pitts v. Unger

Appeal from a judgment (denominated order) of the Supreme Court, Orleans *1359County (James E Punch, A.J.), entered December 28, 2007 in a habeas corpus proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: We reject the contention of petitioner that Supreme Court erred in dismissing his petition for a writ of habeas corpus. Petitioner’s contention in support of the petition with respect to double jeopardy could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 (see People ex rel. Pitts v McCoy, 11 AD3d 985 [2004], lv denied 4 NY3d 705 [2005]; People ex rel. Hammock v Meloni, 233 AD2d 929 [1996], lv denied 89 NY2d 807 [1997]). Contrary to petitioner’s contentions, the petition was properly dismissed in response to respondent’s motion (see CPLR 404 [a]; see also People ex rel. Goude v La Vallee, 42 AD2d 648 [1973]), and petitioner was afforded meaningful representation by the attorney assigned to represent him in connection with the habeas corpus petition (see generally People v Benevento, 91 NY2d 708, 712 [1998]). Present — Martoche, J.P., Centra, Fahey and Pine, JJ.