
    The People of the State of New York ex rel. Sherif Elkady, Petitioner, v James Conway, as Superintendent of Attica Correctional Facility, Respondent.
    [838 NYS2d 308]
   Proceeding pursuant to CPLR article 70 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 7002 [b] [2]) seeking a writ of habeas corpus.

It is hereby ordered that said petition be and the same hereby is unanimously denied without costs.

Memorandum: Petitioner commenced this original proceeding seeking a writ of habeas corpus. According to petitioner, the evidence presented at his trial in 1998 does not support his conviction of depraved indifference murder in light of the decisions of the Court of Appeals in People v Payne (3 NY3d 266 [2004], rearg denied 3 NY3d 767 [2004]), People v Suarez (6 NY3d 202 [2005] ), and People v Feingold (7 NY3d 288 [2006]). “Because the petition raises issues that could have been and were raised on petitioner’s direct appeal and by a CPL 440.10 motion, habeas corpus relief is unavailable” (People ex rel. Lyons v Conway, 32 AD3d 1324 [2006], lv denied 8 NY3d 802 [2007]; see e.g. People ex rel. Gloss v Costello, 309 AD2d 1160 [2003], lv denied 1 NY3d 504 [2003]; People ex rel. Spencer v Burge, 307 AD2d 772 [2003]). In any event, pursuant to the express statement of the Court of Appeals in Policano v Herbert (7 NY3d 588, 603 [2006] ), the case law upon which defendant relies does not apply retroactively. Present—Martoche, J.P., Smith, Centra, Lunn and Peradotto, JJ.  