People ex rel. Allah v. Leonardo

170 A.D.2d 730, 565 N.Y.S.2d 331, 1991 N.Y. App. Div. LEXIS 1371

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1991
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Berke, J.), entered January 22, 1990 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Although petitioner argues that his continued imprisonment is illegal because the jury before which he was tried was unlawfully constituted, such an argument could have been raised either by way of direct appeal or by a motion pursuant to CPL article 440 (see, People ex rel. Rosado v Miles, 138 AD2d 808). The facts which petitioner now asserts were either known or ascertainable at the time of his conviction and do not provide a basis for departure from traditional procedures (see, People ex rel. Keitt v McMann, 18 NY2d 257). Accordingly, Supreme Court properly denied petitioner’s application for a writ of habeas corpus (see, People ex rel. Dudley v Kelly, 128 AD2d 981).

Judgment affirmed, without costs. Mahoney, P. J., Casey, Weiss, Crew III, and Harvey, JJ., concur.