People ex rel. Brown v. Commissioner of New York State Department of Correctional

Appellate Division of the Supreme Court of New York

People ex rel. Brown v. Commissioner of New York State Department of Correctional

252 A.D.2d 602, 673 N.Y.S.2d 620, 1998 N.Y. App. Div. LEXIS 8049

Appellate Division of the Supreme Court of the State of New York·Decided July 2, 1998·Published·Cited by 6 cases

Opinion

—Appeal from a judgment of the Supreme Court (Demurest, J.), entered March 23, 1998 in Franklin County, which dismissed petitioner’s application in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this proceeding for a writ of habeas corpus, contending that the indictment which led to his conviction of murder in the second degree was jurisdictionally defective, that the prosecution was improperly allowed to amend the indictment and that he received ineffective assistance of trial counsel. Supreme Court dismissed the application and we affirm. Given that petitioner could have raised these issues on his direct appeal or in a motion pursuant to CPL article 440, habeas corpus is an inappropriate remedy (see, People ex rel. Rodriguez v Kuhlmann, 239 AD2d 721, lv denied 90 NY2d 808; People ex rel. Barrett v Scully, 203 AD2d 311) and we find no reason to depart from traditional orderly procedure in this case.

Mikoll, J. P., Mercure, White, Peters and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Demurest, J.), entered March 23, 1998 in Franklin County, which dismissed petitioner’s application in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this proceeding for a writ of habeas corpus, contending that the indictment which led to his conviction of murder in the second degree was jurisdictionally defective, that the prosecution was improperly allowed to amend the indictment and that he received ineffective assistance of trial counsel. Supreme Court dismissed the application and we affirm. Given that petitioner could have raised these issues on his direct appeal or in a motion pursuant to CPL article 440, habeas corpus is an inappropriate remedy (see, People ex rel. Rodriguez v Kuhlmann, 239 AD2d 721, lv denied 90 NY2d 808; People ex rel. Barrett v Scully, 203 AD2d 311) and we find no reason to depart from traditional orderly procedure in this case.

Mikoll, J. P., Mercure, White, Peters and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.

People ex rel. Brown v. Commissioner of New York State Department of Correctional, 252 A.D.2d 602, 673 N.Y.S.2d 620, 1998 N.Y. App. Div. LEXIS 8049 (N.Y. Ct. App. 1998).

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252 A.D.2d 602 (People ex rel. Brown v. Commissioner of New York State Department of Correctional) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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