| People ex rel. Martinez v West |
| 2005 NYSlipOp 06155 |
| July 28, 2005 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Brian J. Martinez, Appellant, v Calvin E. West, as Superintendent of Elmira Correctional Facility, Respondent. |
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Appeal from a judgment of the Supreme Court (O'Brien, III, J.), entered November 12, 2004 in Chemung County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that he is being unlawfully detained because County Court lacked jurisdiction, allegedly having not arraigned petitioner on the indictment. Supreme Court denied the application and we affirm. The record reveals that petitioner could have and/or did raise this issue on direct appeal from the judgment of conviction (People v Martinez, 298 AD2d 897 [2002], lv denied 98 NY2d 769 [2002], cert denied 538 US 963 [2003]) and in his CPL article 440 motion. Therefore, habeas corpus relief is unavailable (see People ex rel. Davis v Leonardo, 186 AD2d 844 [1992], lv denied 81 NY2d 702 [1992]; People ex rel. Willette v Coughlin, 184 AD2d 926 [1992], lv denied 80 NY2d 759 [1992]; People ex rel. Woodard v Berry, 143 AD2d 457 [1988], lv denied 73 NY2d 705 [1989]). Furthermore, we find no reason to depart from traditional orderly procedure (see People ex rel. Keitt v McMann, 18 NY2d 257, 262 [1966]).
Crew III, J.P., Carpinello, Mugglin, Rose and Lahtinen, JJ., concur. [*2]Ordered that the judgment is affirmed, without costs.