People ex rel. Ramon Alvarez v Calvin West

People ex rel. Alvarez v West 2005 NY Slip Op 07891 [22 AD3d 996] October 27, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

The People of the State of New York ex rel. Ramon Alvarez, Appellant, v Calvin West, as Superintendent of Elmira Correctional Facility, Respondent.

—[*1]Appeal from a judgment of the Supreme Court (O'Brien III, J.), entered February 23, 2004 in Chemung County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner pleaded guilty in 1979 to the first count of a two-count indictment charging felony murder and was sentenced to 15 years to life in prison. As relayed by petitioner, his attempt at appeal was unsuccessful. Petitioner thereafter commenced this CPLR article 70 proceeding for a writ of habeas corpus contending that the indictment was jurisdictionally defective, thereby rendering the judgment and conviction invalid. Supreme Court denied the petition without a hearing and this appeal ensued.

Inasmuch as petitioner could have raised the issue of whether the indictment was jurisdictionally defective on direct appeal of his conviction or in a CPL 440.10 motion, habeas corpus relief is unavailable (see People ex rel. Wright v Miller, 16 AD3d 746 [2005], lv denied 5 NY3d 703 [2005]; People ex rel. Pitts v McCoy, 11 AD3d 985 [2004], lv denied 4 NY3d 705 [2005]; People ex rel. Bunting v McGinnis, 8 AD3d 795 [2004], lv denied 3 NY3d 608 [2004]). Furthermore, despite petitioner's contention to the contrary, we find no reason to depart from traditional orderly procedure (see People ex rel. Keitt v McMann, 18 NY2d 257, 262 [1966]; [*2]People ex rel. Curry v Girdich, 290 AD2d 912 [2002], lv denied 98 NY2d 602 [2002]).

Crew III, J.P., Peters, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.