PEOPLE CHARLES v. DeANGELO

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

The PEOPLE of the State of New York ex rel. Dwight CHARLES, Appellant, v. Geno DeANGELO, as Superintendent of the Broome County Jail, Respondent.

Decided: July 22, 1999

Before:  CARDONA, P.J., MERCURE, CREW III, CARPINELLO and GRAFFEO, JJ. Dwight Charles, Gowanda, appellant in person. William L. Gibson, County Attorney (Max T. Raterman of counsel), Binghamton, for respondent.

Appeal from a judgment of the Supreme Court (Monserrate, J.), entered August 26, 1998 in Broome County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, having pleaded guilty to the crime of criminal sale of a controlled substance in the fifth degree, commenced this proceeding for a writ of habeas corpus while still being held in the Broome County Jail,1 contending, inter alia, that he did not receive effective assistance of counsel and that the People knowingly presented false identification testimony to the Grand Jury, thereby rendering the indictment jurisdictionally defective.   Supreme Court dismissed the petition and we affirm.   Given that the issues could be raised on a direct appeal or in a motion pursuant to CPL 440.10, we find that habeas corpus relief is unavailable (see, People ex rel. McCallister v. McGinnis, 249 A.D.2d 637, 638, 671 N.Y.S.2d 535;  People ex rel. Moore v. Miller, 244 A.D.2d 735, 664 N.Y.S.2d 388, lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130;  People ex rel. Murray v. Bartlett, 234 A.D.2d 828, 651 N.Y.S.2d 936, lv. dismissed 89 N.Y.2d 1002, 657 N.Y.S.2d 400, 679 N.E.2d 640).   Moreover, absent circumstances warranting a departure from traditional orderly procedure, the application for a writ was properly denied (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).

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Petitioner is currently serving his sentence in the custody of the Department of Correctional Services.

MEMORANDUM DECISION.

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