PEOPLE McCOY v. FILION

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

PEOPLE of the State of New York ex rel. Isaiah McCOY, Petitioner-Appellant, v. Gary H. FILION, Superintendent, Marcy Correctional Facility, Respondent-Respondent.

Decided: June 14, 2002

PRESENT:  PIGOTT, JR., P.J., HAYES, HURLBUTT, SCUDDER, and BURNS, JJ. David M. Giglio, Utica, for Petitioner-Appellant. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of Counsel), for Respondent-Respondent.

On December 12, 1995, petitioner was a passenger in a vehicle that was stopped by State Troopers in Schuyler County, New York. After a weapon was discovered in the vehicle, petitioner was secured in a Sheriff's vehicle that had arrived at the scene.   After petitioner was removed from the Sheriff's vehicle for transport, 15 packets of cocaine, a crack pipe and marijuana were discovered in the Sheriff's vehicle.   Petitioner was charged in a felony complaint with criminal possession of a weapon in the third degree and, following a preliminary hearing, was held over for the action of the grand jury with respect to that charge.   The grand jury returned an indictment charging petitioner with two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [4] ) and one count of criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   Petitioner was subsequently convicted of all charges in Chemung County Court but on his direct appeal, the Third Department modified the judgment by reversing the conviction of both counts of criminal possession of a weapon (People v. McCoy, 266 A.D.2d 589, 699 N.Y.S.2d 131, lv. denied 94 N.Y.2d 905, 707 N.Y.S.2d 389, 728 N.E.2d 988).   As a result, petitioner is presently serving a sentence of 10 to 20 years on the remaining conviction of criminal possession of a controlled substance.

 Supreme Court properly denied the petition for a writ of habeas corpus.   Petitioner contends that he was not notified that the drug charges were to be presented to the grand jury and that, as a result, he was denied his right to be present at all stages of the proceedings.   That issue is not appropriate for habeas relief because it could have been raised on direct appeal or by a CPL article 440 motion (see People ex rel. Mancuso v. Herbert, 256 A.D.2d 1158, 1159, 684 N.Y.S.2d 103, lv. denied 93 N.Y.2d 809, 694 N.Y.S.2d 632, 716 N.E.2d 697;  People ex rel. Hendy v. Leonardo, 173 A.D.2d 992, 569 N.Y.S.2d 510, lv. denied 78 N.Y.2d 857, 574 N.Y.S.2d 938, 580 N.E.2d 410, rearg. dismissed 82 N.Y.2d 703, 601 N.Y.S.2d 577, 619 N.E.2d 655;  People ex rel. Shaffer v. Kuhlmann, 173 A.D.2d 1034, 1035, 570 N.Y.S.2d 695, lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409).   In any event, petitioner's contention has no merit.   The felony complaint charging criminal possession of a weapon was disposed of when, following a preliminary hearing, the court ordered that defendant be held for action of the grand jury (see CPL 180.70[1] ).   Therefore, when the grand jury deliberated on the charge of criminal possession of a controlled substance, petitioner was not being held on “a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding” and was not entitled to notice (190.50[5][a];  see People v. Green, 110 A.D.2d 1035, 1036, 489 N.Y.S.2d 129).

The further contention of petitioner that he was denied effective assistance of counsel at trial and on appeal also would not entitle him to habeas corpus relief (see People ex rel. Grant v. Scully, 133 A.D.2d 359, 519 N.Y.S.2d 261;  People ex rel. Dixon v. Smith, 112 A.D.2d 50, 490 N.Y.S.2d 413;  cf.  People v. Bachert, 69 N.Y.2d 593, 595-596, 516 N.Y.S.2d 623, 509 N.E.2d 318).   In any event, petitioner's contentions concerning ineffective assistance of counsel are premised solely on counsel's failure to raise a baseless claim and therefore are without merit.

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

MEMORANDUM: