People ex rel. Wallace v Lavalley

People ex rel. Wallace v Lavalley 2013 NY Slip Op 00368 Decided on January 24, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 24, 2013
513910

[*1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. HOWARD WALLACE, Appellant,

v

THOMAS LaVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.

Calendar Date: December 17, 2012
Before: Mercure, J.P., Lahtinen, Spain, McCarthy and Egan Jr., JJ.


Howard Wallace, Comstock, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Kathleen M. Treasure of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lawliss, J.), entered January 6, 2012 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Following a new trial ordered after petitioner's prior conviction was reversed (People v Wallace, 250 AD2d 398, 399 [1998]), petitioner was convicted of three counts of robbery in the first degree. He was thereafter sentenced, as a persistent violent felony offender, to an aggregate prison term of 60 years to life. The judgment of conviction was affirmed on appeal (People v Wallace, 298 AD2d 130 [2002]) and his motion pursuant to CPL 440.10 was denied. Petitioner thereafter brought this application for a writ of habeas corpus contending that the indictment underlying his convictions was invalid. Supreme Court dismissed the application without a hearing and petitioner now appeals.

We affirm. As petitioner could have challenged the validity of the indictment on direct appeal or in the context of his CPL 440.10 motion, habeas corpus relief is unavailable (see People ex rel. Hall v Bradt, 85 AD3d 1422, 1422-1423 [2011]; People ex rel. Reyes v State of New York Dept. of Correctional Servs., 288 AD2d 523, 523 [2001]). Furthermore, we find no [*2]extraordinary circumstances in the record warranting a departure from traditional orderly procedure (see People ex rel. McNeil v Bradt, 87 AD3d 1239, 1239 [2011], lv denied 18 NY3d 803 [2012]; People ex rel. Jackson v Rock, 67 AD3d 1080, 1080 [2009]). Consequently, Supreme Court properly dismissed the application.

Mercure, J.P., Lahtinen, Spain, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.