People ex rel. Klosin v Berbary
2009 NY Slip Op 06994 [66 AD3d 1429]
October 2, 2009
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 9, 2009


The People of the State of New York ex rel. Philip Klosin, Appellant, v James L. Berbary, Superintendent, Collins Correctional Facility, Respondent.

—[*1] Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of counsel), for petitioner-appellant.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (M. William Boller, A.J.), entered March 10, 2008. The judgment dismissed the petition for a writ of habeas corpus.

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

Memorandum: Supreme Court properly dismissed the petition for a writ of habeas corpus. The contentions of petitioner could have been raised on his direct appeal from the judgment of conviction or by way of a CPL 440.10 motion, and thus habeas corpus relief is not available (see People ex rel. Lanfair v Corcoran, 60 AD3d 1351 [2009], lv denied 12 NY3d 714 [2009]; People ex rel. Smith v Burge, 11 AD3d 907 [2004], lv denied 4 NY3d 701 [2004]). Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Pine, JJ.