People ex rel. Fauntleroy v Rock

People ex rel. Fauntleroy v Rock 2014 NY Slip Op 00402 Decided on January 23, 2014 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 23, 2014
516559

[*1]THE People of the State of New York ex Rel. Kareem Fauntleroy, Appellant,

v

DAVID ROCK, as Superintendent of Upstate Correctional Facility, Respondent.

Calendar Date: November 25, 2013
Before: Peters, P.J., Rose, Stein and Egan Jr., JJ.


Kareem Fauntleroy, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kate
H. Nepveu of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lawliss, J.), entered October 2, 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.

Petitioner was convicted in 1996 of numerous crimes, including four counts of murder in the second degree, and is currently serving a lengthy prison sentence. The judgment of conviction was affirmed upon direct appeal, and he has repeatedly and unsuccessfully moved to vacate it pursuant to CPL article 440 (People v Fauntleroy, 258 AD2d 664 [1999], lv denied 93 NY2d 924 [1999]). He challenges the indictment in this habeas corpus proceeding, arguing that he is innocent and that the failure to identify him by name in each of the counts constitutes a jurisdictional defect. Supreme Court denied the petition, prompting this appeal.

Petitioner's argument could have been raised upon direct appeal or in a CPL article 440 motion, rendering habeas corpus relief inappropriate (see People ex rel. Riley v Bradt, 91 AD3d 1238, 1238 [2012]; People ex rel. Franza v Walsh, 76 AD3d 1160, 1160 [2010], lv denied 15 NY3d 716 [2010], cert denied US , 131 S Ct 3038 [2011]). We perceive no reason to depart from traditional orderly procedure under the circumstances of this case and, thus, affirm (see id.). [*2]

Peters, P.J., Rose, Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.