WILLIAMS, DEANDRE v. SHEAHAN, MICHAEL ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1101
KAH 15-00927
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK EX REL.
DEANDRE WILLIAMS, ALSO KNOWN AS DAVID WILLIAMS,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
MICHAEL SHEAHAN, SUPERINTENDENT, FIVE POINTS
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.
Appeal from a judgment of the Supreme Court, Seneca County
(Dennis F. Bender, A.J.), entered April 21, 2015 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 on the grounds that the evidence is legally
insufficient to support his conviction of assault in the second degree
(Penal Law § 120.05 [2]), he is actually innocent, and certain errors
were made at trial. We conclude that Supreme Court properly denied
his petition. “Habeas corpus relief is not an appropriate remedy for
asserting claims that were or could have been raised on direct appeal
or in a CPL article 440 motion” (People ex rel. Dilbert v Bradt, 117
AD3d 1498, 1498, lv denied 24 NY3d 902 [internal quotation marks
omitted]; see People ex rel. Collins v New York State Dept. of Corr. &
Community Supervision, 132 AD3d 1234, 1235, lv denied 26 NY3d 917).
Although petitioner contends that he could not raise those grounds on
his direct appeal because he was denied effective assistance of
appellate counsel, we note that this proceeding for a writ of habeas
corpus is not appropriate for raising that contention because his
remedy for ineffective assistance of appellate counsel would be a new
appeal, not immediate release from custody (see People ex rel. Rivera
v Smith, 244 AD2d 944, 944, lv denied 91 NY2d 808). Rather, that
contention is properly the subject of a motion for a writ of error
coram nobis (see id.).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court