People ex rel. Rodriguez v. Kuhlmann

239 A.D.2d 721, 657 N.Y.S.2d 1021, 1997 N.Y. App. Div. LEXIS 5264

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1997
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Kane, J.), entered June 27, 1996 in Sullivan County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner applied for habeas corpus relief contending that the indictment which led to his conviction was jurisdictionally defective in that it was based upon testimony which the People knew was false. Habeas corpus relief is unavailable in this case given that petitioner’s contentions could have been raised on his direct appeal or, more appropriately, in a motion pursuant to CPL 440.10 (see, CPL 440.10 [1] [a], [b], [c]; see also, People ex rel. Murphy v Kuhlmann, 207 AD2d 937, appeal dismissed 85 NY2d 856; People ex rel. Vann v Bartlett, 207 AD2d 929, Iv denied 84 NY2d 808). Furthermore, we find no extraordinary circumstances to warrant departure from traditional orderly procedure and, accordingly, affirm Supreme Court’s dismissal of petitioner’s application. Petitioner’s remaining contentions have been reviewed and found to be lacking in merit.

Cardona, P. J., Mikoll, White, Casey and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.