         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
9.1
KAH 11-00136
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK EX REL.
GLENN E. VAN NORSTRAND, PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
PETITIONER-APPELLANT.

ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Cayuga County (Mark H. Fandrich, A.J.), entered June 17, 2009 in a
proceeding pursuant to CPLR article 70. The judgment denied and
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: Petitioner commenced this proceeding for a writ of
habeas corpus contending, inter alia, that he was denied effective
assistance of counsel at sentencing and that the Board of Parole’s
determination denying him discretionary release to parole supervision
was arbitrary, capricious and irrational. Supreme Court properly
dismissed the petition. Petitioner’s contention concerning the
alleged ineffectiveness of counsel could have been raised on direct
appeal or by way of a motion pursuant to CPL 440.10, and thus habeas
corpus relief is not available with respect to that contention (see
People ex rel. Lanfair v Corcoran, 60 AD3d 1351, lv denied 12 NY3d
714; People ex rel. Mills v Poole, 55 AD3d 1289, lv denied 11 NY3d
712). In any event, even if that contention had merit, petitioner
would not be entitled to immediate release from custody, and thus
habeas corpus relief is not available with respect to that contention
for that reason as well (see People ex rel. Gloss v Costello, 309 AD2d
1160, lv denied 1 NY3d 504; Matter of Caroselli v Goord, 269 AD2d 706,
lv denied 95 NY2d 754). Further, petitioner is not entitled to habeas
corpus relief based upon the determination of the Board of Parole
denying him discretionary release to parole supervision (see People ex
rel. Alford v Berbary, 2 AD3d 1337, lv denied 2 NY3d 702, cert denied
542 US 942). Finally, we reject the contention of petitioner that the
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                                                         KAH 11-00136

court erred in denying his applications for assigned counsel (see
Gloss, 309 AD2d at 1161).




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
