People ex rel. Greene v. Scully

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Juidice, J.), entered April 24,1991, which dismissed the proceeding. Ordered that the judgment is affirmed, without costs or disbursements. The petitioner has failed to set forth any "factual or legal basis * * * which would render the indictment underlying [his] conviction jurisdictionally defective” (People ex rel. Brady v Scully, 111 AD2d 419, 420). Indeed, the claim raised by the petitioner could have been raised on direct appeal, or in a motion pursuant to CPL article 440, and, at best, would have only mandated a new trial, and not petitioner’s immediate release from custody (see, People ex rel. Brady v Scully, supra; People v Jordan, 20 AD2d 583). Accordingly, the instant habeas corpus proceeding was properly dismissed (see, People ex rel. Kaplan v Commissioner of Correction of City of N. Y., 60 NY2d 648). Mangano, P. J., Sullivan, Balletta and Ritter, JJ., concur.