| People ex rel. Hemphill v McCardle |
| 2015 NY Slip Op 52043(U) [57 Misc 3d 1213(A)] |
| Decided on March 13, 2015 |
| Supreme Court, Jefferson County |
| McClusky, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through November 1, 2017; it will not be published in the printed Official Reports. |
The People of the
State of New York ex rel. John Hemphill, Petitioner, For a Judgment Pursuant to Article 70 of
the Civil Practice Law and Rules,
against Barry McCardle, Superintendent Watertown Correctional Facility, Anthony J. Annucci NYS DOCCS, Respondent. |
Petitioner John Hemphill is presently serving five indeterminate sentences of 25 years to Life for convictions for two counts of Robbery 1st degree, one count of Robbery 2nd degree, one [*2]count of Assault 2nd degree and one count of Criminal Possession of a Weapon 2nd degree, all running concurrently with one another, having been sentenced as a persistent violent felony offender by the Supreme Court, New York County on September 9, 1993 for crimes committed on January 16, 1992. At the time the crimes resulting in the 1993 conviction were committed the Petitioner was serving an indeterminate sentence of ten to twenty years for one count of a 1976 Robbery 1st degree conviction. These sentences ran consecutively by operation of law.
In January of 2015, Petitioner filed this petition for a writ of habeas corpus, pursuant to Article 70 of the CPLR, on the grounds that the New York State Department of Corrections and Community Service did not have a proper mandate for the Petitioners incarceration, that he was never indicted on the charges underlying his 1993 convictions, and that he should not have been sentenced as a persistent violent felony offender.
The Respondent attaches to his Answer and Return both the 1976 Sentence and Commitment and the five Amended Sentence and Commitments for the 1993 convictions, by which Respondent is bound.
All of Petitioner's remaining allegations are properly the subject of a direct appeal or a CPL §440 motion. It is noted that the Petitioner did in fact challenge his conviction in People v Hemphill, 247 AD2d 339 (1st Dept 1998).
The proper remedy would be to grant Petitioner a new trial or a new appeal, and Respondent correctly asserts that since the Petitioner is not entitled to an immediate release from custody, the remedy of habeas corpus is not available. People ex rel. Mendolia v Superintendent 47 NY2d 779; People ex rel. Jose Roman v Thomas J. Higgins 186 AD2d 1044 (4th Dept 1992).
Thus, Petitioner's application for a writ of habeas corpus is hereby denied.