People ex rel. Moore v. Miller

244 A.D.2d 735, 664 N.Y.S.2d 388, 1997 N.Y. App. Div. LEXIS 11751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1997
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Torraca, J.), entered February 26, 1997 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is currently incarcerated at Eastern Correctional Facility in Ulster County for his 1985 conviction of the crime of sodomy in the first degree (People v Moore, 132 AD2d 776, lv denied 70 NY2d 802). In September 1996, petitioner commenced this proceeding for a writ of habeas corpus contending that the Grand Jury which indicted him refused to call the witnesses he requested, thereby resulting in a jurisdictionally defective accusatory instrument. Supreme Court dismissed the petition and we affirm. Habeas corpus relief is inappropriate where, as here, the issue now advanced by petitioner was raised on the direct appeal from his judgment of conviction (id.) and could have been raised in his CPL article 440 motion (see, People ex rel. Rodriguez v Kuhlmann, 239 AD2d 721, lv denied 90 NY2d 808; People ex rel. Walker v Senkowski, 205 , lv denied 84 NY2d 808). Moreover, we find nothing in this case which would warrant our departure from traditional orderly proceedings (see, People ex rel. Flores v Miller, 201 AD2d 820, 821; cf., People ex rel. Keitt v McMann, 18 NY2d 257, 262).

Mikoll, J. P., Casey, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.