| People ex rel. Torres v Graham |
| 2018 NY Slip Op 08877 |
| Decided on December 21, 2018 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 21, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
1454 KAH 18-00046
v
HAROLD T. GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-APPELLANT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered June 13, 2017 in a habeas corpus proceeding. The judgment, among other things, dismissed the petition.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from a judgment that, among other things, dismissed his habeas corpus petition. He contends that Supreme Court erred in denying him habeas corpus relief without an evidentiary hearing because he made a meritorious initial showing that he was arrested pursuant to an improper "John Doe" warrant that was not subsequently amended to include his name or a description of him. We reject that contention. Insofar as petitioner directs us to testimony in the record of his direct appeal (People v Torres, 129 AD3d 1535 [4th Dept 2015]), or information discovered through a Freedom of Information Law request, habeas corpus relief is not appropriate because he could have raised his contention on direct appeal or in a CPL article 440 motion (see People ex rel. Frederick v Superintendent, Auburn Corr. Facility, 156 AD3d 1468, 1468 [4th Dept 2017], lv denied 31 NY3d 908 [2018]; People ex rel. Haddock v Dolce, 149 AD3d 1593, 1593 [4th Dept 2017], lv denied 29 NY3d 917 [2017]; see generally People v Rossborough, 122 AD3d 1244, 1245 [4th Dept 2014]). We have considered petitioner's remaining arguments and conclude that they do not warrant modification or reversal of the judgment.
Entered: December 21, 2018
Mark W. Bennett
Clerk of the Court