CAMPBELL, ERICK M. v. J. COLVIN, SUPERINTENDENT ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 251 KAH 14-00819 PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ. THE PEOPLE OF THE STATE OF NEW YORK EX REL. ERICK M. CAMPBELL, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER SUPERINTENDENT, J. COLVIN, MID-STATE CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT. PETER J. DIGIORGIO, JR., UTICA, FOR PETITIONER-APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG OF COUNSEL), FOR RESPONDENT-RESPONDENT. Appeal from a judgment (denominated order and judgment) of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered January 16, 2014 in a habeas corpus proceeding. The judgment, inter alia, 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, inter alia, dismissed without a hearing his petition pursuant to CPLR article 70. Petitioner’s contention that respondent failed to file a proper return under CPLR 7008 is unpreserved for our review (see People ex rel. Mitchell v Cully, 63 AD3d 1679, 1679, lv denied 13 NY3d 708), and we decline to exercise our power to review it as a matter of discretion in the interest of justice. Contrary to petitioner’s further contention, the motion to dismiss, which Supreme Court converted to a return, established that petitioner was lawfully detained pursuant to an undischarged sentence of incarceration, and the petition was therefore properly dismissed (see People ex rel. Allen v Hammock, 128 AD2d 657, 657). Lastly, we reject petitioner’s contention that it was an abuse of discretion for the court to deny his request for assigned counsel. Petitioner failed to make that request until briefs had been filed with the court, and we therefore conclude that petitioner suffered no prejudice from a lack of assigned counsel (see People ex rel. Eaddy v Wilkins, 27 AD2d 984, 984). Entered: March 31, 2017 Frances E. Cafarell Clerk of the Court