People ex rel. Rosario v. La Vallee

55 A.D.2d 771, 389 N.Y.S.2d 477, 1976 N.Y. App. Div. LEXIS 15557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1976
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered February 17, 1976 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, without a hearing. The petition alleges that his conviction is illegal because the Grand Jury which indicted him was illegally constituted through the unconstitutional exclusion of "negroes” from its membership. The application contains absolutely no factual allegations of such exclusion and is entirely insufficient to raise any legal question which could possibly affect the legality of his detention. Since the application is inadequate to raise a question as to the legality of the indictment and/or the composition of the Grand Jury, there is no basis for reaching any issue of waiver or the appropriateness of habeas corpus as a remedy. Judgment affirmed, without costs. Koreman, P. J., Greenblott, Sweeney, Kane and Herlihy, JJ., concur.