People ex rel. Cato v. Tedford

— Appeal from a judgment of the Supreme Court (McKeighan, J.), entered May [989] 25, 2012 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. In 2001, petitioner was sentenced to an aggregate prison term of 8V2 to 17 years following his conviction after a jury trial of multiple counts of the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. In December 2011, petitioner commenced this proceeding pursuant to CPLR article 70 for a writ of habeas corpus challenging the legality of his incarceration on the ground that the indictment upon which his conviction is based is defective. Supreme Court denied the petition without a hearing and petitioner now appeals. We affirm. Habeas corpus relief is not available where, as here, the claims asserted by petitioner could have been raised on direct appeal or through a motion pursuant to CPL article 440 (see People ex rel. Backman v Walsh, 101 AD3d 1316, 1316 [2012], lv denied 20 NY3d 863 [2013]; People ex rel. Franza v Sheahan, 100 AD3d 1315, 1315 [2012], appeal dismissed 20 NY3d 1032 [2013]; People ex rel. Chapman v LaClair, 64 AD3d 1026, 1026 [2009], lv denied 13 NY3d 712 [2009]). Finding no reason to depart from traditional orderly procedure, we conclude that Supreme Court properly denied the petition (see id.). Lahtinen, J.P., McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.