PEOPLE FRANZA v. LAPE (2009)

Appeal from a judgment of the Supreme Court (Lalor, J.), entered September 18, 2008 in Greene County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

 Petitioner, who is serving a lengthy prison term following his 1992 conviction of three counts of attempted murder in the second degree and one count of criminal possession of a weapon in the first degree (People v. Franza, 239 A.D.2d 201, 658 N.Y.S.2d 4 [1997], lv. denied 90 N.Y.2d 904, 663 N.Y.S.2d 516, 686 N.E.2d 228 [1997] ), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging that the trial court lacked jurisdiction because the underlying indictment was procured by fraud. Habeas corpus relief does not lie where, as here, the arguments advanced could have been raised either upon a direct appeal from the judgment of conviction or in the context of a collateral motion (see People ex rel. Smith v. Burge, 11 A.D.3d 907, 907-908, 784 N.Y.S.2d 746 [2004], lv. denied 4 N.Y.3d 701, 790 N.Y.S.2d 647, 824 N.E.2d 48 [2004];  People ex rel. Charles v. DeAngelo, 263 A.D.2d 796, 797, 694 N.Y.S.2d 505 [1999] ).   Notably, the record reflects that similar issues were the subject of a previous-and unsuccessful-CPL article 440 motion, as well as a federal application for habeas corpus relief.   Under these circumstances, and in light of the fact that the record discloses no extraordinary circumstances that would warrant a departure from traditional orderly procedure, Supreme Court's judgment is affirmed (see People ex rel. Walsh v. Sabourin, 305 A.D.2d 759, 759, 757 N.Y.S.2d 913 [2003];  People ex rel. Brown v. People, 295 A.D.2d 834, 835, 743 N.Y.S.2d 895 [2002], lv. denied 98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186 [2002], cert. denied 537 U.S. 1175, 123 S.Ct. 1001, 154 L.Ed.2d 920 [2003] ).

ORDERED that the judgment is affirmed, without costs.