The People of the State of New York ex rel. Tommy R. Jackson, Appellant, v. Michael McGinnis, as Superintendent of Southport Correctional Facility, Respondent

The People of the State of New York ex rel. Tommy R. Jackson, Appellant, v Michael McGinnis, as Superintendent of Southport Correctional Facility, Respondent. [672 NYS2d 826] [MAJORITY] —Appeal from a judgment of the Supreme Court (Ellison, J.), entered May 27, 1997 in Chemung County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner, an inmate at Southport Correctional Facility in Chemung County, commenced this habeas corpus proceeding contending, inter alia, that his conviction after retrial of the crimes of burglary in the third degree and criminal mischief in the third degree violated the constitutional prohibition against double jeopardy. Supreme Court dismissed the application and we affirm. Habeas corpus relief is not available to petitioner insofar as the double jeopardy claim could be raised on appeal from his conviction or in a postconviction motion pursuant to CPL article 440 (see, People ex rel. Murphy v Leonardo, 179 AD2d 848, lv denied 79 NY2d 757; People ex rel. Webb v Leonardo, 136 AD2d 840). Petitioner’s remaining contention that Supreme Court relied upon matters outside the record in dismissing the application is without merit and, in any event, would not entitle him to immediate release (see, People ex rel. Franza v Stinson, 228 AD2d 843, appeal dismissed 88 NY2d 1015). Cardona, P. J., Mikoll, Crew III, Yesawich Jr. and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.