People ex rel. Tunstall v. Miller, 24 A.D.3d 921 (N.Y. App. Div. 2005). · Go Syfert
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People ex rel. Tunstall v. Miller, 24 A.D.3d 921 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 1 distinct court.
Strongest positive: Harriott v. Koenigsmann (nyappdiv, 2017-04-27)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Harriott v. Koenigsmann
N.Y. App. Div. · 2017 · confidence medium
The contrary testimony of petitioner and his inmate witnesses, as well as petitioner’s claim that the charges were fabricated in retaliation for previous grievances that he had filed — which was denied by the author of the misbehavior report — raised credibility issues for the Hearing Officer to resolve (see Matter of Garrow v Annucci, 141 AD3d 1046, 1047 [2016]; Matter of Jones v Fischer, 138 AD3d 1294, 1295 [2016]; Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
discussed Cited as authority (rule) Harriott v. Koenigsmann
N.Y. App. Div. · 2017 · confidence medium
The contrary testimony of petitioner and his inmate witnesses, as well as petitioner’s claim that the charges were fabricated in retaliation for previous grievances that he had filed — which was denied by the author of the misbehavior report — raised credibility issues for the Hearing Officer to resolve (see Matter of Garrow v Annucci, 141 AD3d 1046, 1047 [2016]; Matter of Jones v Fischer, 138 AD3d 1294, 1295 [2016]; Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
discussed Cited as authority (rule) Harriott v. Koenigsmann
N.Y. App. Div. · 2017 · confidence medium
The contrary testimony of petitioner and his inmate witnesses, as well as petitioner’s claim that the charges were fabricated in retaliation for previous grievances that he had filed — which was denied by the author of the misbehavior report — raised credibility issues for the Hearing Officer to resolve (see Matter of Garrow v Annucci, 141 AD3d 1046, 1047 [2016]; Matter of Jones v Fischer, 138 AD3d 1294, 1295 [2016]; Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
discussed Cited as authority (rule) Tarbell v. Lamora
N.Y. App. Div. · 2013 · confidence medium
We find that the misbehavior report and the hearing testimony of the sergeant who authored it provide substantial evidence to support the determination (see Matter of Vigliotti v Bell, 52 AD3d 1064, 1064 [2008]; Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
discussed Cited as authority (rule) Tarbell v. Lamora
N.Y. App. Div. · 2013 · confidence medium
We find that the misbehavior report and the hearing testimony of the sergeant who authored it provide substantial evidence to support the determination (see Matter of Vigliotti v Bell, 52 AD3d 1064, 1064 [2008]; Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
cited Cited as authority (rule) Sanders v. Goord
N.Y. App. Div. · 2008 · confidence medium
The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
discussed Cited as authority (rule) Smith v. Goord
N.Y. App. Div. · 2007 · confidence medium
The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Roye v Goord, 34 AD3d 1134, 1134 [2006]; Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
discussed Cited as authority (rule) Encarnacion v. Goord
N.Y. App. Div. · 2006 · confidence medium
There is nothing in the record to substantiate petitioner’s claim of retaliation which, in any event, presented a credibility issue for the Hearing Officer to resolve (see Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).
Retrieving the full opinion text from the archive…
The People of the State of New York ex rel. Hilbert Tunstall
v.
David L. Miller, as Superintendent of Eastern Correctional Facility
Appellate Division of the Supreme Court of the State of New York.
Dec 8, 2005.
24 A.D.3d 921
Cited by 1 opinion  |  Published

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered March 11, 2005 in Ulster County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is an inmate currently serving concurrent prison terms of 2 to 4 years and 15 years, respectively, upon his 1998 conviction of criminal mischief in the third degree and burglary in the second degree. His conviction was affirmed by this Court on appeal (People v Tunstall, 278 AD2d 585 [2000], lv denied 96 NY2d 788 [2001]) and his federal habeas corpus petition was denied. Thereafter, petitioner commenced this habeas corpus proceeding seeking to be released from prison on the basis that his trial counsel failed to effectively represent him during the suppression hearing. Supreme Court denied the petition without a hearing and this appeal ensued.

We affirm. Petitioner’s claim is of the type more properly raised on direct appeal from the judgment of conviction or in a CPL article 440 motion rather than in the context of a habeas corpus proceeding (see People ex rel. Hunter v Buffardi, 15 AD3d 736, 737 [2005]; People ex rel. Smith v Burge, 11 AD3d 907, 908 [2004], lv denied 4 NY3d 701 [2004]). In fact, petitioner concedes that he raised this argument in his pro se brief on direct appeal; this Court found petitioner’s pro se contentions “meritless” (People v Tunstall, supra at 588). In any event, even if petitioner were to prevail on the merits, he would not be entitled to immediate release from prison (see People ex rel. Burr v Smith, 6 AD3d 841, 841 [2004], lv denied 3 NY3d 605 [2004]). Consequently, habeas corpus relief is not available and Supreme Court properly denied the petition.

Cardona, P.J., Mercure, Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.