People ex rel. Lanfair v Corcoran

2009 NY Slip Op 02068 [60 AD3d 1351]

March 20, 2009

Appellate Division, Fourth Department

As corrected through Wednesday, May 6, 2009

The People of the State of New York ex rel. Gerald A. Lanfair,Appellant, v Michael Corcoran, Superintendent, Cayuga Correctional Facility,Respondent.

—[*1]Charles A. Marangola, Moravia, for petitioner-appellant.

Gerald A. Lanfair, petitioner-appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Rajit S. Dosanjh of counsel), forrespondent-respondent.

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (MarkH. Fandrich, A.J.), entered February 29, 2008 in a habeas corpus proceeding. The judgmentdismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on theground that the amended indictment underlying his conviction is jurisdictionally defective.Supreme Court properly dismissed the petition. Petitioner could have raised his challenge to theamended indictment on his direct appeal from the judgment of conviction or by way of a motionpursuant to CPL 440.10, and thus habeas corpus relief is not available (see People ex rel.Curry v Girdich, 290 AD2d 912, 913 [2002], lv denied 98 NY2d 602 [2002];People ex rel. Gonzalez v Bennett, 263 AD2d 565 [1999], lv denied 94 NY2d753 [1999]). Further, petitioner has shown no reason to justify a departure "from traditionalorderly procedure" (People ex rel. Brown v Commissioner of N.Y. State Dept. ofCorrectional Servs., 252 AD2d 602 [1998]). The contention of petitioner in his pro sesupplemental brief that he was denied effective assistance of appellate counsel on his directappeal is not preserved for our review (see People ex rel. Velez v Artus, 49 AD3d 1109, 1110 [2008],lv denied 10 NY3d 716 [2008], rearg denied 11 NY3d 772 [2008]), and in anyevent would not provide a basis for habeas corpus relief (see People ex rel. Rios v Irvin,256 AD2d 1169 [1998], lv denied 93 NY3d 816; People ex rel. Hendy vLeonardo, 173 AD2d 992 [1991], lv denied 78 NY2d 857 [1991], reargdismissed 82 NY2d 703 [1993]). Present—Scudder, P.J., Hurlbutt, Peradotto, Greenand Gorski, JJ.