| People ex rel. Lewis v Graham |
| 2008 NY Slip Op 10416 [57 AD3d 1508] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York ex rel. Teddy Lewis, Appellant, vHarold Graham, Superintendent, Auburn Correctional Facility,Respondent. |
—[*1] Teddy Lewis, petitioner-appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Thomas G.Leone, A.J.), entered July 20, 2007 in a habeas corpus proceeding. The judgment denied the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied the petition seeking a writ of habeas corpus. Thecontention of petitioner that he is entitled to immediate release because the indictment wasjurisdictionally defective could have been raised on direct appeal or by way of a CPL article 440motion, and thus habeas corpus relief does not lie (see People ex rel. Gloss v Murray, 35 AD3d 1186 [2006], lvdenied 8 NY3d 807 [2007]; People exrel. Alvarez v West, 22 AD3d 996 [2005], lv denied 6 NY3d 704 [2006]; People ex rel. Reed v Travis, 12 AD3d1102 [2004], lv denied 4 NY3d 704 [2005]). In any event, petitioner's contention iswithout merit. "An indictment is jurisdictionally defective only if it does not effectively charge thedefendant with the commission of a particular crime" (People v D'Angelo, 98 NY2d 733, 734[2002]). Although each count of the indictment failed to state petitioner's name and instead stated that"THE DEFENDANT, ACTING IN CONCERT WITH ANOTHER PERSON" committed thespecified offenses, petitioner was the only person listed as the defendant in the caption of theindictment. Thus, the reference to "DEFENDANT" in the body of the indictment was sufficient tocharge petitioner with the commission of the crimes. Present—Martoche, J.P., Smith, Centra,Green and Pine, JJ.