| People ex rel. Rivas v Walsh |
| 2010 NY Slip Op 00596 [69 AD3d 1236] |
| January 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Rudi Rivas, Appellant,v James J. Walsh, as Superintendent of Sullivan Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Steven C. Wu of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (LaBuda, J.), entered July 10,2008 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 70, without a hearing.
Petitioner is currently serving an aggregate prison sentence of 33 years to life arising out of1994 and 1995 convictions, affirmed upon appeal, for various drug-related offenses (People vRivas, 260 AD2d 583 [1999], lv denied 93 NY2d 1025 [1999]). He hasunsuccessfully attacked those convictions in a CPL article 440 motion and numerous habeascorpus applications, and this Court has previously affirmed the rejection of one such application(People ex rel. Rivas v Walsh, 40AD3d 1327 [2007], lv denied 9 NY3d 814 [2007]). This appeal arises from SupremeCourt's dismissal of another application by petitioner for a writ of habeas corpus.
Petitioner contends that his primary argument on this application differs from those raisedpreviously. The essence of his claim is that the first indictment was founded upon legallyinsufficient evidence and the second indictment was jurisdictionally defective. These argumentswere or could have been raised upon petitioner's direct appeal or CPL article 440 motion and, as[*2]no extraordinary circumstances exist that would warrant adeparture from traditional orderly procedure, habeas corpus relief is unavailable (see People ex rel. Spaulding v Woods,63 AD3d 1456, 1457 [2009]; People ex rel. Franza v Lape, 61 AD3d 1200, 1200 [2009]).Indeed, we have previously rejected petitioner's legal insufficiency argument (People ex rel.Rivas v Walsh, 40 AD3d at 1328), and petitioner is barred by collateral estoppel fromraising it again (see People ex rel. Spaulding v Woods, 63 AD3d at 1457). Were we toreach petitioner's other argument—that the absence of a second felony complaint renderedthe second indictment jurisdictionally defective—we would find that argument to bewithout merit (see CPL 1.20 [1], [3], [17]; 210.05). Accordingly, Supreme Courtproperly dismissed the habeas corpus petition, thereby rendering academic the enforcement ofpetitioner's subpoena seeking the minutes of the grand jury proceedings.
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed,without costs.