People ex rel. Pitts v. McCoy

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered July 8, 2003 in a proceeding pursuant to CPLR article 70. The judgment dismissed the petition for a writ of habeas corpus. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: We reject the contention of petitioner that Supreme Court should have granted his petition for a writ of habeas corpus. The contentions of petitioner could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 (see People ex rel. Patterson v Berbary, 299 AD2d 850, 851 [2002], lv denied 99 NY2d 508 [2003]; People ex rel. Mammarello v Donnelly, 286 AD2d 937 [2001]; People ex rel. Johnson v Walker, 262 AD2d 1005 [1999], lv denied 93 NY2d 818 [1999], cert denied 528 US 1165 [2000]), including his contentions that the indictment was jurisdictionally defective (see People ex rel. Batista v Walker, 198 AD2d 865 [1993], lv denied 83 NY2d 752 [1994]) and that he was subjected to double jeopardy (see People ex rel. Hammock v Meloni, 233 AD2d 929 [1996], lv denied 89 NY2d 807 [1997]; People ex rel. Webb v Leonardo, 136 AD2d 840, 841 [1988]). Present—Pine, J.P., Scudder, Kehoe, Martoche and Lawton, JJ.