People ex rel. Davis v. Leonardo

186 A.D.2d 844, 588 N.Y.S.2d 811, 1992 N.Y. App. Div. LEXIS 11036

Opinion

— Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered December 24, 1991 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.

We find that Supreme Court properly denied petitioner’s application for a writ of habeas corpus. Petitioner’s allegations concerning his indictment could have been raised on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Rosado v Miles, 138 AD2d 808). Further, the facts alleged by petitioner do not merit a departure from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 AD2d 850, lv denied 75 NY2d 702). Were we to consider petitioner’s allegation that the indictment was defective and did not serve to convey jurisdiction to County Court because, inter alia, the Grand Jury foreman failed to sign the indictment, we would find that the certified copy of the indictment in the record belies petitioner’s claims and establishes that the indictment was valid (see, CPLR 4540 [a]).

Weiss, P. J., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.