| People ex rel. Howard v Rock |
| 2009 NY Slip Op 03071 [61 AD3d 1230] |
| April 23, 2009 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York ex rel. Thomas Howard, Appellant, v David Rock, as Superintendent of Great Meadow Correctional Facility, Respondent. |
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Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Pritzker, J.), entered July 2, 2008 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner, who is serving an aggregate prison term of 42 years following his 2001 conviction of multiple sex crimes (People v Howard, 20 AD3d 768 [2005], lv denied 5 NY3d 806 [2005]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging certain constitutional violations and various jurisdictional defects. Habeas corpus relief does not lie where, as here, the arguments advanced could have been raised either upon a direct appeal from the judgment of conviction or in the context of a CPL article 440 motion (see People ex rel. Woodard v Lape, 58 AD3d 903, 904 [2009]; People ex rel. Malik v State of New York, 58 AD3d 1042, 1043 [2009])—even though one of the claims raised is jurisdictional in nature (see People ex rel. Moore v Connolly, 56 AD3d 847, 848 [2008], lv denied 12 NY3d 701 [2009]). Contrary to petitioner's assertion, a CPL article 440 motion indeed is the mechanism by which he may seek to vacate the judgment of conviction upon the ground that the trial court lacked personal and/or subject matter jurisdiction (see CPL 440.10 [1] [a]). Moreover, while we agree that Supreme Court should not have dismissed petitioner's application prior to considering his [*2]timely reply, that error does not entitle petitioner to the requested relief. In short, as our review of the record reveals no extraordinary circumstances that would warrant a departure from traditional orderly procedure, Supreme Court's judgment is affirmed (see People ex rel. Moore v Connolly, 56 AD3d at 848; People ex rel. Hunter v Buffardi, 15 AD3d 736 [2005]).
Peters, J.P., Lahtinen, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment is affirmed, without costs.