People ex rel. Wise v. Keane

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered December 8, 1997 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner is presently serving concurrent prison terms total [920] ing 25 years to life for his 1978 conviction of the crimes of robbery in the first degree, burglary in the first degree and two counts of murder in the second degree. In 1997, petitioner commenced this habeas corpus proceeding contending that the indictment was duplicitous. Supreme Court dismissed the petition and we affirm. Habeas corpus is an inappropriate remedy inasmuch as petitioner’s challenge to the indictment could have been raised on direct appeal or in a CPL article 440 motion (see, People ex rel. Murphy v Kuhlmann, 207 AD2d 937, appeal dismissed 85 NY2d 856; People ex rel. Best v Senkowski, 200 AD2d 808, appeal dismissed 83 NY2d 951). Absent a showing of extraordinary circumstances warranting a departure from traditional orderly procedure, petitioner’s application was appropriately dismissed. Mikoll, J. P., Mercure, Crew III, Yesawich Jr. and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.