The People of State of New York ex rel. James Spencer, Appellant, v. John W. Burge, as Superintendent of Auburn Correctional Facility, Respondent

The People of State of New York ex rel. James Spencer, Appellant, v John W. Burge, as Superintendent of Auburn Correctional Facility, Respondent. [762 NYS2d 858] [MAJORITY] Appeal from a judgment (denominated order) of Supreme Court, Cayuga County (Corning, J.), entered May 21, 2002, which dismissed the petition seeking a writ of habeas corpus. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. “Habeas corpus relief is not a proper remedy where the issues raised in the petition were, or could have been, raised on direct appeal or by a CPL article 440 motion” (People ex rel. Abdullah v Walker, 199 AD2d 1074, 1074 [1993], lv denied 83 NY2d 752 [1994]). The issues raised in the petition were raised and decided against petitioner on direct appeal (People v Spencer, 279 AD2d 539 [2001], lv denied 96 NY2d 835 [2001]) and on his CPL article 440 motion (see Matter of Williams v Henderson, 124 AD2d 994 [1986], lv denied 69 NY2d 605 [1987]; People ex rel. Vess v La Vallee, 55 AD2d 968 [1977]). In addition, petitioner was previously denied habeas corpus relief based upon the same issues raised in the instant proceeding (People ex rel. Spencer v Miller, 277 AD2d 551 [2000]), and he has made no showing of changed circumstances that would warrant further habeas corpus review (see People ex rel. Woodard v Berry, 163 AD2d 759, 760 [1990], lv denied 76 NY2d 712 [1990]; People ex rel. Alim v Smith, 57 AD2d 728, 728-729 [1977], lv denied 42 NY2d 803 [1977]). Present — Green, J.P., Wisner, Burns, Gorski and Hayes, JJ.