| People ex rel. Moore v Connolly |
| 2008 NY Slip Op 08378 [56 AD3d 847] |
| November 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Gary H. Moore,Appellant, v Sheridan Connolly, as Acting Superintendent of Lyon Mountain CorrectionalFacility, Respondent. |
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 11, 2008 inClinton County, which denied petitioner's application for a writ of habeas corpus, in a proceedingpursuant to CPLR article 70, without a hearing.
In 1995, petitioner was convicted of burglary in the second degree and was sentenced as apersistent violent felony offender to 15 years to life in prison. His conviction was later affirmedon appeal (People v Moore, 248 AD2d 405 [1998], lv denied 91 NY2d 1010[1998]) and his subsequent application for a writ of error coram nobis was denied (People v Moore, 38 AD3d 683[2007]). Petitioner then commenced the instant proceeding pursuant to CPLR article 70 for a writof habeas corpus seeking to be released from prison. Supreme Court denied petitioner'sapplication without a hearing, resulting in this appeal.
In support of his application, petitioner contends that his waiver of indictment wasjurisdictionally defective because he was not held over for grand jury action in accordance withCPL 195.10 and did not sign a written instrument waiving indictment under CPL 195.20.Inasmuch as this claim, albeit jurisdictional in nature, could have been raised on direct appeal orin a CPL article 440 motion, habeas corpus relief is unavailable (see People ex rel. McDermott v Artus,38 AD3d 957 [2007], lv denied 8 NY3d 814 [2007]; see also People ex rel. Spaulding vNapoli, 50 AD3d 1330, 1331 [2008]; People ex rel. Alvarez v West, 22 AD3d 996, 996 [2005], lvdenied 6 NY3d 704 [2006]). Under the circumstances presented, we find no reason to departfrom traditional orderly [*2]procedure (see People ex rel.Spaulding v Napoli, 50 AD3d at 1331; People ex rel. Alvarez v West, 22 AD3d at996).
Peters, J.P., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.