MEMORANDUM DECISION AND ORDER Petitioner commenced this proceeding seeking a writ of habeas corpus contending that he is being illegally detained. Petitioner contends, inter alia, that the underlying indictment for the charges for which he is being held was defective and that the prosecutor involved in the indictment had an actual conflict of interest that prejudiced petitioner. Following a plea of guilty, petitioner was convicted of attempted criminal possession of a weapon in the second degree. He was sentenced as a second felony offender on March 16, 2018, to a determinate term of incarceration of seven years, plus five years’ post-release supervision.Initially, petitioner requested the assignment of counsel in this proceeding, as well as release pending the instant decision. The Court hereby denies both requests.Habeas corpus relief is not the appropriate remedy where the issues raised in the petition could also be raised in a motion to vacate the judgment of conviction or on direct appeal (see People ex rel. McCoy v. Filion, 295 AD2d 956 (4th Dept 2002), lv denied 98 NY2d 612 (2002)). Here, petitioner’s claims regarding his indictment and other allegations could have been raised on direct appeal or a CPL §440.10 motion, and, thus, habeas corpus relief is not available (see People ex rel. Rivas v. Walsh, 69 AD3d 1236 (3d Dept 2010), lv denied, 14 NY3d 712 (2010); People ex rel. Rivas v. Walsh, 40 AD3d 1327 (3d Dept 2007), lv denied, 9 NY3d 814 (2007); People ex rel. Pitts v. McCoy, 11 AD3d 985 (4th Dept 2004), lv denied 4 NY3d 705 (2005); People ex rel. Batista v. Walker, 198 AD2d 865 (4th Dept 1993), lv denied 83 NY2d 752 (1994)).Nevertheless, with regard to petitioner’s argument that the prosecutor involved in the indictment had an actual conflict of interest requiring reversal of the conviction, such claim is unavailing. According to a newspaper article submitted by petitioner, Steven Sharp, the bureau chief for the general felony unit in the Albany County District Attorney’s office had been secretly working on the side for defense attorney Cheryl Coleman. Mr. Sharp worked for Ms. Coleman over a four-year period without the permission of the Albany County District Attorney. According to the article, Mr. Sharp’s defense work involved appeals outside of Albany County.Petitioner indicates that Cheryl Coleman and defense attorney Kurt Haas, who he states works in Ms. Coleman’s office, represented him from “commencement of his criminal case until a little after arraignment on [the] superseding indictment.” Steven Sharp is the prosecutor who indicted petitioner.1 Petitioner argues that this resulted in actual prejudice to him which should have disqualified the prosecutor.To warrant vacatur of the conviction in cases where it is alleged that the prosecutor had an actual conflict of interest, it must be established that there was actual prejudice or a substantial risk of abused confidence (see People v. English, 88 NY2d 30 (1996); Matter of Schumer v. Holtzman, 60 NY2d 46 (1983)). Petitioner has provided no proof of actual prejudice or a substantial risk of abused confidence here. Assuming, arguendo, that Ms. Coleman and Mr. Haas represented petitioner as alleged in the petition, such representation was preliminary (see English, 88 NY2d at 34). Moreover, there is nothing in the record to show that Mr. Sharp worked on petitioner’s Albany County case outside of his role in the district attorney’s office. There is also nothing in the record to show that petitioner was prejudiced by Mr. Sharp’s unrelated work for Ms. Coleman or that petitioner’s confidences were abused (see English, 88 NY2d at 34; see also People v. Dennis, 141 AD3d 730 (2d Dept 2016), lv denied 28 NY3d 1072 (2016); People v. Arbas, 85 AD3d 1320 (3d Dept 2011), lv denied 17 NY3d 813 (2011); compare People v. Good, 62 AD3d 1041 (3d Dept 2009)). “The narrowly defined standard for the removal of a public prosecutor, to wit, ‘to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence’ is not satisfied by the mere appearance of impropriety” (People v. Gigliuto, 22 AD3d 890 (3d Dept 2005), lv denied 7 NY3d 789 (2006) (internal citations omitted)). Petitioner has failed to establish any actual prejudice here.Even if petitioner’s arguments had merit, he would not be entitled to immediate release from prison (see eg People ex rel Washington v. Walsh, 43 AD3d 1217 (3d Dept 2007), lv denied 9 NY3d 816 (2007); People ex rel Marsh v. Miller, 275 AD2d 822 (3d Dept 2000), lv denied 95 NY2d 769 (2000); see generally People v. Good, 83 AD3d 1124 (3d Dept 2011), lv denied 17 NY3d 816 (2011)). As a result, habeas corpus relief is not available here. As no “extraordinary circumstances” exist that would warrant a departure from traditional and orderly proceedings, habeas corpus relief is unavailable (see Rivas, 69 AD3d at 1236).The Court has considered the remaining contentions of petitioner and finds them to be without merit. Accordingly, based upon the foregoing, it is herebyORDERED that the petition for a writ of habeas corpus is hereby denied in its entirety and the proceeding dismissed.This constitutes the Decision and Order of the Court.Dated: January 3, 2019
