SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1312 

KAH 11-01845 

PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK EX REL. 

RICHARD MILLS, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

JOHN LEMPKE, SUPERINTENDENT, FIVE POINTS 

CORRECTIONAL FACILITY, ERIC SCHNEIDERMAN, 

NEW YORK STATE ATTORNEY GENERAL, AND BRIAN 

FISCHER, COMMISSIONER, NEW YORK STATE 

DEPARTMENT OF CORRECTIONS AND COMMUNITY 

SUPERVISION, RESPONDENTS-RESPONDENTS. 

LINDA M. CAMPBELL, SYRACUSE, FOR PETITIONER-APPELLANT. 

RICHARD MILLS, PETITIONER-APPELLANT PRO SE.

 

Appeal from a judgment of the Supreme Court, Seneca County

(Dennis F. Bender, A.J.), entered July 25, 2011 in a habeas corpus

proceeding. The judgment denied and dismissed the petition. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from a judgment that denied and dismissed

the habeas corpus petition, petitioner initially contends that Supreme

Court erred in applying the doctrine of res judicata. Although it

appears that the court intended to apply the doctrine of collateral

estoppel, and the use of that doctrine would have been proper under

these circumstances, we agree that the court erred in applying the

doctrine of res judicata. “Under the doctrine of res judicata, a

party may not litigate a claim where a judgment on the merits exists

from a prior action [or proceeding] between the same parties involving

the same subject matter” (Matter of Hunter, 4 NY3d 260, 269). Here,

inasmuch as the parties opposing petitioner in the habeas corpus

proceeding are not identical to those opposing him in the resentencing

proceeding, the court erred in applying the doctrine of res judicata

(see Matter of Josato, Inc. v Wright, 288 AD2d 384, 385; Matter of

State of New York v Town of Hardenburgh, 273 AD2d 769, 772). We

nevertheless conclude, however, that the court properly denied and

dismissed the petition on the merits.

We reject petitioner’s contention that he is unlawfully detained

based on the court’s failure to file an amended order of commitment

after resentencing him on one of the charges of which he was
-2- 1312 

KAH 11-01845 

convicted. “Irregularities or defects in an order of commitment would

not entitle petitioner to immediate release where, as here, there is a

valid judgment of conviction underlying the commitment” (People ex

rel. Burr v Clark, 278 AD2d 938, 938, lv denied 96 NY2d 707; see

People ex rel. Reed v Travis, 12 AD3d 1102, 1103, lv denied 4 NY3d

704). Petitioner’s contention that he is unlawfully detained because

the court violated his right to due process in resentencing him is

also unavailing. Even assuming, arguendo, that his right to due

process was violated, we conclude that petitioner would only be

entitled to a new sentencing proceeding, and thus habeas corpus relief

does not lie (see People ex rel. McGourty v Senkowski, 213 AD2d 954,

954, lv denied 85 NY2d 812). Petitioner’s further contention that

Correction Law § 601-d and Penal Law § 70.85 are ex post facto laws is

raised for the first time on appeal and thus is unpreserved for our

review and, in any event, that contention is without merit (see People

v Pruitt, 74 AD3d 1366, 1367, lv denied 15 NY3d 855).

Petitioner’s remaining contentions may be raised on direct appeal

or by a motion pursuant to CPL article 440, and thus habeas corpus

relief is unavailable with respect to those contentions (see People ex

rel. Smith v Burge, 11 AD3d 907, 907-908, lv denied 4 NY3d 701; People

ex rel. Pitts v McCoy, 11 AD3d 985, 985, lv denied 4 NY3d 705). 

Entered: December 27, 2013 Frances E. Cafarell

Clerk of the Court