People ex rel. Chavys v. Coombe

235 A.D.2d 906, 652 N.Y.S.2d 1017, 1997 N.Y. App. Div. LEXIS 541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1997
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Ellison, J.), entered May 17, 1996 in Chemung County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, after a hearing.

Petitioner is serving a sentence of imprisonment at Elmira Correctional Facility in Chemung County, having been convicted of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Petitioner’s appeal from that conviction was pending when he filed the instant application for a writ of habeas corpus, contending that the indictment underlying his criminal conviction was defective because it failed to give sufficient notice of the crime charged. Supreme Court dismissed the petition and we affirm. Habeas corpus relief is inappropriate when it is based upon a claim that was or could have been raised either on direct appeal or in the context of a postjudgment motion under CPL article 440, as is the case with the issues raised by petitioner herein (see, People ex rel. Sneed v Lacy, 217 AD2d 731, lv denied 86 NY2d 708). Our review of the contentions made by petitioner in the context of this application for a writ of habeas corpus discloses that they are, in any event, without merit and do not warrant his release.

Cardona, P. J., Crew III, Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.