People ex rel. Forsythe v. Poole

56 A.D.2d 1239, 866 N.Y.S.2d 896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2008
• Status: Published

Opinion

— Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered August 14, 2007 in a habeas corpus proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that the court in which he was convicted lacked jurisdiction. Contrary to petitioner’s contention, Supreme Court properly dismissed the petition sua sponte. The issues raised in the petition either could have been or were raised on direct appeal or by a motion pursuant to CPL article 440 (see People ex rel. Smith v Burge, 11 AD3d 907 [2004], lv denied 4 NY3d 701 [2004]; People ex rel. Gloss v Costello, 309 AD2d 1160 [2003], lv denied 1 NY3d 504 [2003]; People ex rel. Minter v Eisenschmidt, 294 AD2d 939 [2002], lv denied 98 NY2d 609 [2002]). Present — Hurlbutt, J.E, Smith, Green, Pine and Gorski, JJ.