In the Matter of Elvin Lebron, Appellant, v. Victor T. Herbert, as Superintendent of Attica Correctional Facility, Respondent

In the Matter of Elvin Lebron, Appellant, v Victor T. Herbert, as Superintendent of Attica Correctional Facility, Respondent. [731 NYS2d 679] [MAJORITY] —Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 15, 2000 in Franklin County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. In 1994, petitioner was convicted on his plea of guilty of the crimes of manslaughter in the first degree, robbery in the first degree, criminal possession of a weapon in the third degree and violation of the conditions of his probation. In November 2000, he filed this habeas corpus proceeding challenging the validity of his conviction based on various assertions of defects in the Grand Jury proceedings, the pretrial proceedings, the plea hearing and sentencing by County Court which, he contends, violated his constitutional rights. Supreme Court denied petitioner’s application for a writ of habeas corpus and we affirm. Since petitioner could have raised these issues in the context of his direct appeal (see, People v Lebron, 238 AD2d 150, lv denied 90 NY2d 895, cert denied 522 US 1032) or in the previous CPL article 440 motions he has filed in Supreme Court, habeas corpus relief is unavailable (see, People ex rel. Murray v Goord, 268 AD2d 827, 828, lv denied 94 NY2d 763). In addition, we note that “even if the issues raised by petitioner were meritorious, habeas corpus relief would be inappropriate inasmuch as he would not be entitled to immediate release” (People ex rel. Carter v Miller, 261 AD2d 674, 675). Cardona, P. J., Mercure, Crew III, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.