PEOPLE WRIGHT v. MILLER (2005)

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered June 16, 2004 in Ulster County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1995, petitioner was convicted after trial of murder in the second degree and criminal possession of a weapon in the third degree in connection with the shooting death of his stepfather and was sentenced to concurrent prison terms of 20 years to life and 2 to 7 years, respectively.   On appeal, the Second Department affirmed the judgment of conviction (People v. Wright, 249 A.D.2d 570, 671 N.Y.S.2d 326 [1998] ), and the Court of Appeals denied petitioner's subsequent application for leave to appeal (People v. Wright, 92 N.Y.2d 883, 678 N.Y.S.2d 30, 700 N.E.2d 568 [1998] ).   Thereafter, petitioner brought two motions pursuant to CPL 440.10 to vacate the judgment of conviction and an application for federal habeas corpus relief, all of which were denied.   He then commenced this proceeding for a writ of habeas corpus seeking to be released from prison on the ground that the indictment providing the basis for his conviction was defective because it was not signed by the grand jury foreperson.   Supreme Court dismissed the petition, resulting in this appeal.

 It is well settled that an application for a writ of habeas corpus is not the appropriate remedy for raising claims that could have been raised on direct appeal or in a motion to vacate the judgment of conviction pursuant to CPL article 440 (see People ex rel. Reed v. Travis, 12 A.D.3d 1102, 784 N.Y.S.2d 403 [2004], lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092 [2005];  People ex rel. Burr v. Duncan, 289 A.D.2d 898, 734 N.Y.S.2d 910 [2001], lv. denied 97 N.Y.2d 612, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002] ).   Here, petitioner failed to raise the contention he now asserts either on his direct appeal or in his prior CPL 440.10 motions and has failed to put forth a reasonable excuse for this omission.   Because no extraordinary circumstances exist warranting a departure from traditional orderly procedure (see People ex rel. Brown v. People of State of N.Y., 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];  People ex rel. Wise v. Keane, 253 A.D.2d 919, 920, 678 N.Y.S.2d 304 [1998], lv. denied 92 N.Y.2d 816, 684 N.Y.S.2d 187, 706 N.E.2d 1211 [1998];  People ex rel. Brown v. Commissioner of New York State Dept. of Correctional Servs., 252 A.D.2d 602, 673 N.Y.S.2d 620 [1998] ), we find that Supreme Court properly dismissed the petition.

ORDERED that the judgment is affirmed, without costs.