Document Info

DocketNumber: 520521

Judges: McCarthy, Garry, Egan, Rose

Filed Date: 3/17/2016

Status: Precedential

Modified Date: 11/1/2024

  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: March 17, 2016                    520521
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK ex rel. NAKIA
    CHANEY,
    Appellant,
    v                                     MEMORANDUM AND ORDER
    DOMINIC DAGOSTINO, as
    Schenectady County Sheriff,
    et al.,
    Respondents.
    ________________________________
    Calendar Date:   January 19, 2016
    Before:   McCarthy, J.P., Garry, Egan Jr. and Rose, JJ.
    __________
    Nakia Chaney, Johnstown, appellant pro se.
    __________
    Appeal from a judgment of the Supreme Court (Caruso, J.)
    entered January 15, 2015 in Schenectady County, which dismissed
    petitioner's application for a writ of habeas corpus, in a
    proceeding pursuant to CPLR article 70, without a hearing.
    Petitioner commenced this habeas corpus proceeding claiming
    to be illegally detained at the Schenectady County Correctional
    Facility. Supreme Court dismissed petitioner's application based
    upon petitioner's failure to satisfy the pleading requirements,
    including his failure to verify the petition and to attach to it
    the mandate under which he was detained or an explanation for why
    that mandate could not be obtained (see CPLR 7002 [c]). This
    appeal followed, and we affirm.
    Having reviewed the record, we agree with Supreme Court,
    which is bound by the record before it, that the petition is
    -2-                  520521
    defective for failing to strictly comply with the requirements of
    CPLR 7002 (c) (see People ex rel. Reynoso v McGinnis, 282 AD2d
    788, 788 [2001], lv denied 96 NY2d 718 [2001]; People ex rel.
    Fisher v Stinson, 232 AD2d 697, 697 [1996], appeal dismissed 89
    NY2d 915 [1996]) inasmuch as the petition was not verified (see
    CPLR 7002 [c]; People ex rel. Kearney v Bartlett, 131 AD3d 1313,
    1314 [2015]; People ex rel. Walsh v Sabourin, 305 AD2d 759, 759
    [2003]) and failed to attach or annex to it the mandate under
    which petitioner is detained or an explanation for why a copy of
    that mandate could not be obtained (see CPLR 7002 [c] [1]; People
    ex rel. Medina v Senkowski, 265 AD2d 779, 779 [1999]). Nor did
    petitioner's request to amend or supplement his petition include
    a copy of the mandate or an explanation for his failure to
    produce it. The remaining issues advanced by petitioner are
    inappropriate in the context of a habeas corpus proceeding
    because they could have been advanced on either his direct appeal
    or in a CPL article 440 motion (see People ex rel. Allen v
    Maribel, 107 AD3d 831, 832 [2013], lv denied 22 NY3d 853 [2013];
    People ex rel. Backman v Walsh, 101 AD3d 1316, 1316 [2012], lv
    denied 20 NY3d 863 [2013], cert denied ___ US ___, 
    134 S. Ct. 84
    [2013]).
    McCarthy, J.P., Garry, Egan Jr. and Rose, JJ., concur.
    ORDERED that the judgment is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court