                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   520327
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK ex rel. MOISES
   FIGUEROA,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
PATRICK GRIFFIN, as
   Superintendent of Sullivan
   County Correctional Facility,
   et al.,
                    Respondents.
________________________________


Calendar Date:   October 27, 2015

Before:   Peters, P.J., Garry, Lynch and Devine, JJ.

                             __________


     Moises Figueroa, Fallsburg, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Martin
Hotvet of counsel), for respondents.

                             __________


      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered September 5, 2014 in Sullivan County, which, in a
proceeding pursuant to CPLR article 70, granted respondents'
motion to dismiss the petition, without a hearing.

      Petitioner, who was convicted of murder in the second
degree and another crime in 1990, commenced this habeas corpus
proceeding seeking release from prison based upon claimed errors
surrounding the indictment and identification testimony at his
jury trial (see People v Figueroa, 204 AD2d 103 [1994], lv denied
83 NY2d 967 [1994]). Supreme Court signed the writ and directed
the manner in which the signed writ and petition were to be
                              -2-                520327

served upon, among others, respondent Superintendent of Sullivan
County Correctional Facility as well as the Attorney General on
or before May 23, 2014. Petitioner failed to abide that
directive, and Supreme Court thereafter granted respondents'
motion to dismiss the petition for lack of personal jurisdiction.
This appeal ensued.

      We affirm. It is well settled that "[a]n inmate's failure
to serve papers in accordance with the directives set forth by
the court in [a signed writ] is a jurisdictional defect requiring
dismissal of the petition absent a demonstration by the inmate
that obstacles presented by his or her imprisonment precluded
compliance" (People ex rel. Holman v Cunningham, 73 AD3d 1298,
1299 [2010]; see People ex rel. Vickery v Walsh, 100 AD3d 1116,
1116 [2012]). Although petitioner served the petition on the
Superintendent on April 14, 2014, petitioner neglected to timely
serve the Superintendent with the signed writ as directed by the
court, and he has not provided an adequate excuse for his failure
to do so (see People ex rel. Vickery v Walsh, 100 AD3d at 1116;
People ex rel. Bernard v Cunningham, 73 AD3d 1306, 1306 [2010]).
Moreover, petitioner's service upon the Attorney General was
"insufficient to confer jurisdiction over [the Superintendent]"
(Matter of Standifer v Goord, 285 AD2d 912, 912 [2001]; see
Matter of Quogue Assoc. v New York State Dept. of Envtl.
Conservation, 112 AD2d 999, 1000 [1985], lv denied 67 NY2d 604
[1986]). Given that petitioner has not made a showing that
imprisonment presented an insurmountable obstacle that prevented
compliance with the court's service directives with regard to the
Superintendent, the court properly dismissed the petition for
lack of personal jurisdiction (see People ex rel. Watson v Walsh,
7 AD3d 850, 850 [2004]). In addition, habeas relief is not
appropriate for claims, as asserted here, that were or could have
been raised on direct appeal or in a CPL article 440 motion (see
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]).

     Peters, P.J., Garry, Lynch and Devine, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
