People ex rel. Nelson v. Scully

119 A.D.2d 709, 501 N.Y.S.2d 123, 1986 N.Y. App. Div. LEXIS 55634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1986
• Status: Published

Opinion

— In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Coppola, J.), dated April 3, 1984, which, after a hearing, dismissed the petition and remanded him to the custody of the respondent.

Judgment affirmed, without costs or disbursements.

Inasmuch as the issues raised herein could have been reviewed either on direct appeal from the petitioner’s judgment of conviction or on a motion pursuant to CPL article 440 in the court of original jurisdiction, habeas corpus is not an appropriate remedy (see, People ex rel. Hall v LeFevre, 92 AD2d 956, affd 60 NY2d 579; People ex rel. Brady v Scully, 111 AD2d 419, lv denied 65 NY2d 609; People ex rel. Phifer v Scully, 107 AD2d 729; People ex rel. Taylor v Commissioner of Correction, 100 AD2d 525; People ex rel. Myers v Dalsheim, 97 AD2d 447, lv denied 61 NY2d 601).

In any event, the petitioner has failed to allege any factual or legal basis which would indicate that the indictment underlying his conviction was jurisdictionally defective (see, People ex rel. Brady v Scully, supra; see also, People v Iannone, 45 NY2d 589, 600; People v Rupp, 75 Misc 2d 683). Weinstein, J. P., Rubin, Eiber and Spatt, JJ., concur.