Summary
dismissing petition for failure to attach a mandate
Summary of this case from Santana v. GriffinOpinion
03-17-2016
The PEOPLE of the State of New York ex rel. Nakia CHANEY, Appellant, v. Dominic DAGOSTINO, as Schenectady County Sheriff, et al., Respondents.
Nakia Chaney, Johnstown, appellant pro se.
Nakia Chaney, Johnstown, appellant pro se.
Opinion
Appeal from a judgment of the Supreme Court (Caruso, J.) entered January 15, 2015 in Schenectady County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner commenced this habeas corpus proceeding claiming to be illegally detained at the Schenectady County Correctional Facility. Supreme Court dismissed petitioner's application based upon petitioner's failure to satisfy the pleading requirements, including his failure to verify the petition and to attach to it the mandate under which he was detained or an explanation for why that mandate could not be obtained (see CPLR 7002[c] ). This appeal followed, and we affirm.
Having reviewed the record, we agree with Supreme Court, which is bound by the record before it, that the petition is defective for failing to strictly comply with the requirements of CPLR 7002(c) (see People ex rel. Reynoso v. McGinnis, 282 A.D.2d 788, 788, 722 N.Y.S.2d 428 [2001], lv. denied 96 N.Y.2d 718, 730 N.Y.S.2d 791, 756 N.E.2d 79 [2001]; People ex rel. Fisher v. Stinson, 232 A.D.2d 697, 697, 648 N.Y.S.2d 48 [1996], appeal dismissed 89 N.Y.2d 915, 653 N.Y.S.2d 918, 676 N.E.2d 500 [1996] ) inasmuch as the petition was not verified (see CPLR 7002[c]; People ex rel. Kearney v. Bartlett, 131 A.D.3d 1313, 1314, 16 N.Y.S.3d 357 [2015]; People ex rel. Walsh v. Sabourin, 305 A.D.2d 759, 759, 757 N.Y.S.2d 913 [2003] ) and failed to attach or annex to it the mandate under which petitioner is detained or an explanation for why a copy of that mandate could not be obtained (see CPLR 7002[c][1]; People ex rel. Medina v. Senkowski, 265 A.D.2d 779, 779, 698 N.Y.S.2d 59 [1999] ). Nor did petitioner's request to amend or supplement his petition include a copy of the mandate or an explanation for his failure to produce it. The remaining issues advanced by petitioner are inappropriate in the context of a habeas corpus proceeding because they could have been advanced on either his direct appeal or in a CPL article 440 motion (see People ex rel. Allen v. Maribel, 107 A.D.3d 831, 832, 966 N.Y.S.2d 685 [2013], lv. denied 22 N.Y.3d 853, 2013 WL 5658024 [2013]; People ex rel. Backman v. Walsh, 101 A.D.3d 1316, 1316, 956 N.Y.S.2d 233 [2012], lv. denied 20 N.Y.3d 863, 2013 WL 1235403 [2013], cert. denied ––– U.S. ––––, 134 S.Ct. 84, 187 L.Ed.2d 65 [2013] ).
ORDERED that the judgment is affirmed, without costs.