People ex rel. McCallister v. McGinnis

Appellate Division of the Supreme Court of New York

People ex rel. McCallister v. McGinnis

249 A.D.2d 637, 671 N.Y.S.2d 535, 1998 N.Y. App. Div. LEXIS 3880

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 9, 1998

StatusPublished

Cited by2 cases

This text of 249 A.D.2d 637 (People ex rel. McCallister v. McGinnis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. McCallister v. McGinnis, 249 A.D.2d 637, 671 N.Y.S.2d 535, 1998 N.Y. App. Div. LEXIS 3880 (N.Y. Ct. App. 1998).

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Opinion

—Appeal from a judgment of the Supreme Court [638]*638(Ellison, J.), entered October 10, 1996, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, having been convicted of the crime of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree, commenced this proceeding for a writ of habeas corpus, contending that the People knowingly presented false testimony to the Grand Jury, thereby rendering the indictment jurisdictionally defective. Supreme Court dismissed the petition and we affirm. Given that the issue could be raised on defendant’s pending appeal or, more appropriately, in a motion pursuant to CPL 440.10 (see, CPL 440.10 [1] [a]), we find that habeas corpus relief is unavailable (see, People ex rel. Rodriguez v Kuhlmann, 239 AD2d 721, lv denied 90 NY2d 808). Furthermore, absent circumstances warranting a departure from traditional orderly procedure, petitioner’s application for a writ was properly denied (see, id.).

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

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—Appeal from a judgment of the Supreme Court [638]*638(Ellison, J.), entered October 10, 1996, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, having been convicted of the crime of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree, commenced this proceeding for a writ of habeas corpus, contending that the People knowingly presented false testimony to the Grand Jury, thereby rendering the indictment jurisdictionally defective. Supreme Court dismissed the petition and we affirm. Given that the issue could be raised on defendant’s pending appeal or, more appropriately, in a motion pursuant to CPL 440.10 (see, CPL 440.10 [1] [a]), we find that habeas corpus relief is unavailable (see, People ex rel. Rodriguez v Kuhlmann, 239 AD2d 721, lv denied 90 NY2d 808). Furthermore, absent circumstances warranting a departure from traditional orderly procedure, petitioner’s application for a writ was properly denied (see, id.).

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

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Bluebook (online)

249 A.D.2d 637, 671 N.Y.S.2d 535, 1998 N.Y. App. Div. LEXIS 3880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-mccallister-v-mcginnis-nyappdiv-1998.

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