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

501
KAH 13-00585
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK EX REL.
DWIGHT M. DILBERT, PETITIONER-APPELLANT,

                     V                              MEMORANDUM AND ORDER

MARK BRADT, SUPERINTENDENT, ATTICA CORRECTIONAL
FACILITY, RESPONDENT-RESPONDENT.


ALAN BIRNHOLZ, EAST AMHERST, FOR PETITIONER-APPELLANT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Penny M. Wolfgang, J.), entered January 2, 2013 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 ground that the evidence adduced at trial was
legally insufficient to support the conviction of murder in the second
degree (Penal Law § 125.25 [2] [depraved indifference]) inasmuch as
the evidence established that his acts against the victim were
intentional and manifested an intent to kill. We conclude that
Supreme Court properly denied the 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. Martinez v Graham, 98 AD3d 1312, 1312, lv denied 20
NY3d 853; see People ex rel. Smith v Graham, 109 AD3d 1113, 1113;
People ex rel. Lewis v Graham, 96 AD3d 1423, 1423, lv denied 19 NY3d
813).




Entered:   May 2, 2014                            Frances E. Cafarell
                                                  Clerk of the Court
