PEOPLE GONZALEZ v. BENNETT (1999)

Appeal from a judgment of the Supreme Court (Ellison, J.), entered November 2, 1998 in Chemung County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this habeas corpus proceeding alleging that the second count of the indictment was jurisdictionally defective because it does not contain factual allegations to support every element of the crime of attempted murder in the first degree.   Supreme Court dismissed the petition and we affirm.

Because petitioner could have raised this issue on direct appeal from his conviction or in his CPL 440.10 motion, habeas corpus relief is unavailable in this case (see, People ex rel. Brown v. Commissioner of N.Y. State Dept. of Correctional Servs., 252 A.D.2d 602, 673 N.Y.S.2d 620;  People ex rel. Best v. Senkowski, 200 A.D.2d 808, 606 N.Y.S.2d 427, appeal dismissed 83 N.Y.2d 951, 615 N.Y.S.2d 873, 639 N.E.2d 413).   Furthermore, we find no extraordinary circumstances to justify a departure from traditional orderly procedure (see, id.).   In any event, petitioner would not be entitled to immediate release given his conviction of various other felonies pursuant to the same indictment (see, People ex rel. Patterson v. Senkowski, 175 A.D.2d 957, 958, 573 N.Y.S.2d 611, lv. denied 78 N.Y.2d 864, 578 N.Y.S.2d 878, 586 N.E.2d 61).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.