           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

634
KAH 11-00852
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK EX REL.
NATHAN LEWIS, PETITIONER-APPELLANT,

                      V                           MEMORANDUM AND ORDER

HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


ADAM H. VAN BUSKIRK, AURORA, FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI
OF COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered March 7, 2011 in a
proceeding pursuant to CPLR article 70. The judgment granted the
motion of respondent to dismiss 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 seeking a writ
of habeas corpus. We conclude that Supreme Court properly dismissed
the petition. Habeas corpus relief is unavailable because
petitioner’s contention in support of the petition “could have been,
or [was], raised on direct appeal or by a motion pursuant to CPL
article 440” (People ex rel. Mills v Poole, 55 AD3d 1289, 1290, lv
denied 11 NY3d 712; see People ex rel. Robinson v Graham, 68 AD3d
1706, lv denied 14 NY3d 706). “Habeas corpus relief also is
unavailable because petitioner would not be entitled to immediate
release from custody even in the event that his contention[] had
merit” (People ex rel. Almodovar v Berbary, 67 AD3d 1419, 1420, lv
denied 14 NY3d 703; see People ex rel. Kaplan v Commissioner of
Correction of City of N.Y., 60 NY2d 648, 649). Finally, “[b]ecause
the petition lacked any justiciable basis upon which a writ of habeas
corpus could be sustained, the court did not abuse its discretion in
denying petitioner’s application for assigned counsel” (People ex rel.
Gloss v Costello, 309 AD2d 1160, 1161, lv denied 1 NY3d 504 [internal
quotation marks omitted]; see People ex rel. Hinton v Graham, 66 AD3d
1402, 1402, lv denied 13 NY3d 934, rearg denied 14 NY3d 795).

Entered:    June 8, 2012                        Frances E. Cafarell
                                                Clerk of the Court
