PEOPLE McCALLISTER v. McGINNIS (1998)

Appeal from a judgment of the Supreme Court (Ellison, J.), entered October 10, 1996, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, having been convicted of the crime of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree, commenced this proceeding for a writ of habeas corpus, contending that the People knowingly presented false testimony to the Grand Jury, thereby rendering the indictment jurisdictionally defective.   Supreme Court dismissed the petition and we affirm.   Given that the issue could be raised on defendant's pending appeal or, more appropriately, in a motion pursuant to CPL 440.10 (see, CPL 440.10[1][a] ), we find that habeas corpus relief is unavailable (see, People ex rel. Rodriguez v. Kuhlmann, 239 A.D.2d 721, 657 N.Y.S.2d 1021, lv. denied 90 N.Y.2d 808, 664 N.Y.S.2d 269, 686 N.E.2d 1364).  Furthermore, absent circumstances warranting a departure from traditional orderly procedure, petitioner's application for a writ was properly denied (see, id.).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.