| People ex rel. Franza v Walsh |
| 2010 NY Slip Op 06742 [76 AD3d 1160] |
| September 30, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Dominic M. Franza,Appellant, v James J. Walsh, as Superintendent of Sullivan Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Patrick J. Walsh of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered February 17, 2010 inSullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 70, without a hearing.
Petitioner was convicted in 1992 of three counts of attempted murder in the second degreeand one count of criminal possession of a weapon in the first degree, for which he is currentlyserving a lengthy aggregate prison term. The backer for the indictment against him had twoprinted words at the top: "Filed" and "Waived." The indictment was handed up and filed, butpetitioner nevertheless challenges the indictment by way of this habeas corpus proceeding,arguing that the presence of the word "Waived" on the backer rendered the indictment "filed aswaived" and constituted a jurisdictional defect. Supreme Court dismissed the petition andpetitioner now appeals.
We affirm. Petitioner's argument could have been raised upon direct appeal or in a CPLarticle 440 motion, and habeas corpus relief is accordingly inappropriate (see People ex rel. Lewis v Graham, 57AD3d 1508, 1508-1509 [2008], lv denied 12 NY3d 705 [2009]; People ex rel. Alvarez v West, 22AD3d 996, 996 [2005], lv denied 6 NY3d 704 [2006]; People ex rel. Wright v Miller, 16AD3d 746, 746 [2005], lv denied 5 NY3d 703 [2005]). Nor do we perceive [*2]any extraordinary circumstances that would warrant a departurefrom traditional orderly procedure (see People ex rel. Alvarez v West, 22 AD3d at 996).
Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.