People ex rel. Frank Sacco v Gary Greene

People ex rel. Sacco v Greene 2004 NY Slip Op 09745 [13 AD3d 1015] December 30, 2004 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

The People of the State of New York ex rel. Frank Sacco, Appellant, v Gary Greene, as Superintendent of Great Meadow Correctional Facility, Respondent.

—[*1]Appeal from a judgment of the Supreme Court (Berke, J.), entered March 29, 2004 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, who is serving a sentence of 25 years to life for a murder conviction, filed this application for a writ of habeas corpus contending that the state lacked territorial jurisdiction to indict and prosecute him because the murder was committed in another state. Supreme Court denied petitioner's application without a hearing and this appeal ensued. Inasmuch as petitioner seeks to raise an issue which could have been advanced on direct appeal or in the context of a CPL article 440 motion, habeas corpus relief is unavailable (see People ex rel. Barnett v Senkowski, 294 AD2d 686 [2002]; see also People ex rel. Burt v Campbell, 2 AD3d 1067 [2003], lv denied 2 NY3d 708 [2004]).

Cardona, P.J., Peters, Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.