| People ex rel. Franza v Lape |
| 2009 NY Slip Op 02879 [61 AD3d 1200] |
| April 16, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Dominic M. Franza,Appellant, v William R. Lape, as Superintendent of Coxsackie Correctional Facility,Respondent. |
—[*1]
Appeal from a judgment of the Supreme Court (Lalor, J.), entered September 18, 2008 inGreene County, which denied petitioner's application for a writ of habeas corpus, in a proceedingpursuant to CPLR article 70, without a hearing.
Petitioner, who is serving a lengthy prison term following his 1992 conviction of threecounts of attempted murder in the second degree and one count of criminal possession of aweapon in the first degree (People v Franza, 239 AD2d 201 [1997], lv denied 90NY2d 904 [1997]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpusalleging that the trial court lacked jurisdiction because the underlying indictment was procuredby fraud. Habeas corpus relief does not lie where, as here, the arguments advanced could havebeen raised either upon a direct appeal from the judgment of conviction or in the context of acollateral motion (see People ex rel.Smith v Burge, 11 AD3d 907, 907-908 [2004], lv denied 4 NY3d 701 [2004];People ex rel. Charles v DeAngelo, 263 AD2d 796, 797 [1999]). Notably, the recordreflects that similar issues were the subject of a previous—and unsuccessful—CPLarticle 440 motion, as well as a federal application for habeas corpus relief. Under thesecircumstances, and in light of the fact that the record discloses no extraordinary circumstancesthat would warrant a departure from traditional orderly procedure, Supreme Court's judgment isaffirmed (see People ex rel. Walsh v Sabourin, 305 AD2d 759, 759 [2003]; People exrel. Brown v People, 295 AD2d 834, 835 [2002], lv denied 98 NY2d 613 [2002],cert denied 537 US 1175 [2003]).
Mercure, J.P., Peters, Lahtinen, Kane and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.