COLLINS, JUNIOR v. NYS DEPT OF CORRECTIONS

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department KAH 14-01643 PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

THE PEOPLE OF THE STATE OF NEW YORK EX REL.

JUNIOR COLLINS, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC., WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT.

Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), dated May 12, 2014 in a habeas corpus proceeding. The judgment denied the petition.

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

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus, contending that he was improperly sentenced as a persistent violent felony offender. We conclude that Supreme Court properly denied the petition. “Habeas corpus relief is unavailable where[, as here,] a claim could have been raised on direct appeal or in a CPL article 440 motion” (People ex rel. Tislon v Rock, 84 AD3d 1606, 1607, lv denied 17 NY3d 712; see Matter of Caroselli v Goord, 269 AD2d 706, 706, lv denied 95 NY2d 754). Indeed, we note that petitioner’s contention was in fact raised and rejected on a prior CPL article 440 motion.

Entered: October 2, 2015 Frances E. Cafarell Clerk of the Court