| People ex rel. Hall v Bradt |
| 2011 NY Slip Op 05159 [85 AD3d 1422] |
| June 16, 2011 |
| 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. Lee Hall, Appellant, v Mark L. Bradt, as Superintendent of Elmira Correctional Facility, Respondent. |
—[*1]
Appeal from a judgment of the Supreme Court (Cerio, Jr., J.), entered November 9, 2010 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.
Following a new trial ordered by this Court after petitioner's prior conviction was reversed (People v Hall, 41 AD3d 880 [2007], lv denied 9 NY3d 876 [2007]), petitioner was convicted of burglary in the second degree and attempted burglary in the second degree. He was sentenced as a second felony offender to an aggregate prison term of 14 years, to be followed by five years of postrelease supervision. The judgment of conviction was affirmed on appeal (People v Hall, 57 AD3d 1229 [2008], lv denied 12 NY3d 784 [2009]). Petitioner then brought the instant proceeding pursuant to CPLR article 70 for a writ of habeas corpus that was denied by Supreme Court without a hearing.[FN*] Petitioner now appeals.
We affirm. It is well settled that habeas corpus relief is not an appropriate remedy for matters that could have been raised on direct appeal or in a CPL article 440 motion (see e.g. People ex rel. Thorpe v Smith, 67 AD3d 1135 [2009], lv denied 14 NY3d 705 [2010]). Here, petitioner challenges the legitimacy of the indictment charging him with the subject crimes, [*2]asserting that it was not properly filed and did not adequately identify him. Inasmuch as these claims could have been raised by petitioner in his direct appeal or a postconviction motion, Supreme Court properly denied the petition (see e.g. People ex rel. Rivas v Walsh, 69 AD3d 1236, 1236 [2010], lv denied 14 NY3d 712 [2010]; People ex rel. Johnson v Graham, 67 AD3d 1452, 1453 [2009], lv denied 14 NY3d 704 [2010]). Furthermore, on the record before us, we perceive no extraordinary circumstances warranting a departure from traditional orderly procedure (see People ex rel. Franza v Walsh, 76 AD3d 1160, 1160 [2010], lv denied 15 NY3d 716 [2010]; People ex rel. Jackson v Rock, 67 AD3d 1080 [2009], lv denied 14 NY3d 704 [2010]).
Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment is affirmed, without costs.