People ex rel. Wheeler v. McMann

24 A.D.2d 786, 263 N.Y.S.2d 571, 1965 N.Y. App. Div. LEXIS 3219

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1965
• Status: Published

Opinion

Reynolds, J.

Appeal from an order of the Supreme Court, Clinton County, denying relator’s petition for a writ of habeas corpus without a hearing. In October, 1960, relator, represented by counsel, plead guilty to an indictment charging him with assault, first degree, and sodomy, first degree. In the instant proceeding he asserts that the indictment was defective and thus his plea a nullity. The use of short-form indictments is clearly constitutional (People v. Bogdanoff, 254 N. Y. 16) and since we find nothing jurisdietionally defective in the present indictment (cf. People v. Riforgiato, 19 A D 2d 132 and People v. Berkowitz, 14 Misc 2d 384, affd. 7 A D 2d 1031), any question of the sufficiency of the indictment should have been raised prior to judgment (People ex rel. Wysokowski v. Conboy, 19 A D 2d 663, mot. for lv. to app. den. 13 N Y 2d 597). Judgment 'affirmed, without costs. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.