PEOPLE LEWIS v. GRAHAM

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York ex rel. Teddy LEWIS, Petitioner-Appellant, v. Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent-Respondent.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ. Charles A. Marangola, Moravia, for Petitioner-Appellant. Teddy Lewis, Petitioner-Appellant Pro Se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of Counsel), for Respondent-Respondent.

 Supreme Court properly denied the petition seeking a writ of habeas corpus.   The contention of petitioner that he is entitled to immediate release because the indictment was jurisdictionally defective could have been raised on direct appeal or by way of a CPL article 440 motion, and thus habeas corpus relief does not lie (see People ex rel. Gloss v. Murray, 35 A.D.3d 1186, 830 N.Y.S.2d 624, lv. denied 8 N.Y.3d 807, 833 N.Y.S.2d 427, 865 N.E.2d 844;  People ex rel. Alvarez v. West, 22 A.D.3d 996, 802 N.Y.S.2d 391, lv. denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791;  People ex rel. Reed v. Travis, 12 A.D.3d 1102, 784 N.Y.S.2d 403, lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092).   In any event, petitioner's contention is without merit.  “An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime” (People v. D'Angelo, 98 N.Y.2d 733, 734, 750 N.Y.S.2d 811, 780 N.E.2d 496).   Although each count of the indictment failed to state petitioner's name and instead stated that “THE DEFENDANT, ACTING IN CONCERT WITH ANOTHER PERSON” committed the specified offenses, petitioner was the only person listed as the defendant in the caption of the indictment.   Thus, the reference to “DEFENDANT” in the body of the indictment was sufficient to charge petitioner with the commission of the crimes.

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

MEMORANDUM: