People ex rel. Gonzalez v. Bennett

263 A.D.2d 565, 693 N.Y.S.2d 263, 1999 N.Y. App. Div. LEXIS 7717

Opinion

—Appeal from a judgment of the Supreme Court (Ellison, J.), entered November 2, 1998 in Chemung County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this habeas corpus proceeding alleging that the second count of the indictment was jurisdictionally defective because it does not contain factual allegations to support every element of the crime of attempted murder in the first degree. Supreme Court dismissed the petition and we affirm.

Because petitioner could have raised this issue on direct appeal from his conviction or in his CPL 440.10 motion, habeas corpus relief is unavailable in this case (see, People ex rel. Brown v Commissioner of N. Y. State Dept. of Correctional Servs., 252 AD2d 602; People ex rel. Best v Senkowski, 200 AD2d 808, appeal dismissed 83 NY2d 951). Furthermore, we find no extraordinary circumstances to justify a departure from traditional orderly procedure (see, id.). In any event, petitioner would not be entitled to immediate release given his conviction of various other felonies pursuant to the same indictment (see, People ex rel. Patterson v Senkowski, 175 AD2d 957, 958, lv denied 78 NY2d 864).

Cardona, P. J., Mikoll, Mercure, Crew III and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.