People ex rel. Morse v. Berbary

• Decision Date: 10 February 2012
• Citation: 937 N.Y.S.2d 909,2012 N.Y. Slip Op. 01021,92 A.D.3d 1229
• Parties: The PEOPLE of the State of New York ex rel. Scott MORSE, Petitioner–Appellant, v. James L. BERBARY, Superintendent, Collins Correctional Facility, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01021

92 A.D.3d 1229

937 N.Y.S.2d 909

The PEOPLE of the State of New York ex rel. Scott MORSE, Petitioner–Appellant,

v.James L. BERBARY, Superintendent, Collins Correctional Facility, Respondent–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 10, 2012.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (M. William Boller, A.J.), entered November 16, 2010 in a habeas corpus proceeding. The judgment dismissed the petition.Charles J. Greenberg, Buffalo, for petitioner-appellant.

Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of Counsel), for respondent-respondent.

MEMORANDUM:

Petitioner commenced this proceeding seeking a writ of habeas corpus, alleging that his detention was illegal and that he is entitled to immediate release from detention because he did not receive due process when in 1998 he was assessed a level two sex offender under the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). According to petitioner, his initial risk assessment was improper. Thus, he contends that he should not have been required to comply with SORA's registration requirements and that the charges stemming from his failure to do so, along with the bail jumping charge “would never have existed.” Supreme Court properly dismissed the petition. Habeas corpus relief is unavailable here inasmuch as petitioner could have raised the instant issue on direct appeal or by way of a motion under CPL article 440 ( see People ex rel. Robinson v. Graham, 68 A.D.3d 1706, 892 N.Y.S.2d 692, lv. denied 14 N.Y.3d 706, 2010 WL 1235655). Moreover, petitioner would not be entitled to immediate release from detention even if he were to prevail with respect to SORA because the crime of bail jumping is unrelated to SORA ( see generally People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 903, 431 N.Y.S.2d 518, 409 N.E.2d 990). Finally, we conclude that petitioner was not a member of the class of plaintiffs covered by the stipulation in Doe v. Pataki, 427 F.Supp.2d 398, 402–403, vacated 481 F.3d 69 who were entitled to a redetermination of their risk assessment level.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, and MARTOCHE, JJ., concur.