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

110
KAH 16-00389
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK EX REL.
ANTONIO COLE, PETITIONER-APPELLANT,

                      V                           MEMORANDUM AND ORDER

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


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered August 21, 2015 in a
habeas corpus proceeding. The judgment denied and dismissed the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner appeals from a judgment dismissing his
petition seeking a writ of habeas corpus on the ground that his guilty
plea was coerced. Supreme Court properly dismissed the petition
inasmuch as petitioner’s contention concerning the voluntariness of
his plea “was or could have been raised on direct appeal from the
judgment of conviction or in a motion pursuant to CPL article 440”
(People ex rel. St. Germain v Walker, 202 AD2d 1053, 1053, lv denied
83 NY2d 758; see People ex rel. Peoples v New York State Dept. of
Corr. Servs., 117 AD3d 1486, 1487, lv denied 23 NY3d 909). Contrary
to petitioner’s contention, the allegations in the petition do not
warrant departure from traditional orderly procedure (see People ex
rel. Lifrieri v Lee, 116 AD3d 720, 720, lv dismissed 24 NY3d 952,
rearg denied 24 NY3d 1039; People ex rel. Hammock v Meloni, 233 AD2d
929, 929, lv denied 89 NY2d 807). Moreover, habeas corpus relief is
unavailable to petitioner because, even if his contentions had merit,
he would be entitled only to withdraw his guilty plea and not
immediate release from custody (see St. Germain, 202 AD2d at 1053-
1054; see generally People ex rel. Walker v Dolce, 125 AD3d 1305,
1305, lv denied 25 NY3d 910).

Entered:    February 3, 2017                    Frances E. Cafarell
                                                Clerk of the Court
