PEOPLE SMITH v. BURGE (2004)

 Petitioner is serving a sentence of 22 1/212 years to life imposed upon his 1993 conviction of various drug charges.   He commenced this proceeding for a writ of habeas corpus, contending that the grand jury proceeding was defective based upon the People's presentation of perjured testimony and the prosecutor's failure to issue proper instructions to the grand jury.   Habeas corpus relief is unavailable, however, because those contentions could have been raised on direct appeal or by a motion pursuant to CPL 440.10 (see People ex rel. McCallister v. McGinnis, 249 A.D.2d 637, 638, 671 N.Y.S.2d 535;  People ex rel. Sneed v. Lacy, 217 A.D.2d 731, 629 N.Y.S.2d 305, lv. denied 86 N.Y.2d 708, 634 N.Y.S.2d 442, 658 N.E.2d 220).   The further contention of petitioner that he was denied effective assistance of trial and appellate counsel, based upon counsels' failure to challenge the allegedly defective grand jury proceeding, would not entitle him to habeas corpus relief (see People ex rel. McCoy v. Filion, 295 A.D.2d 956, 957, 744 N.Y.S.2d 604, lv. denied 98 N.Y.2d 612, 749 N.Y.S.2d 3, 778 N.E.2d 554).   Supreme Court thus properly dismissed the petition sua sponte (see Matter of Almonte v. New York State Div. of Parole, 2 A.D.3d 1239, 1240, 768 N.Y.S.2d 861, lv. dismissed 2 N.Y.3d 758, 778 N.Y.S.2d 775, 811 N.E.2d 37).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: