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People v. Connolly

Appellate Division of the Supreme Court of New York, Third Department
Nov 6, 2008
56 A.D.3d 847 (N.Y. App. Div. 2008)

Summary

affirming New York Supreme Court, Clinton County's denial of petition for a writ of habeas corpus brought pursuant to C.P.L.R. Article 70

Summary of this case from Moore v. Superintendent of Southport Corr. Facility

Opinion

No. 504297.

November 6, 2008.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 11, 2008 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Gary H. Moore, Malone, appellant pro se.

Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Stein, JJ.


In 1995, petitioner was convicted of burglary in the second degree and was sentenced as a persistent violent felony offender to 15 years to life in prison. His conviction was later affirmed on appeal ( People v Moore, 248 AD2d 405, lv denied 91 NY2d 1010) and his subsequent application for a writ of error coram nobis was denied ( People v Moore, 38 AD3d 683). Petitioner then commenced the instant proceeding pursuant to CPLR article 70 for a writ of habeas corpus seeking to be released from prison. Supreme Court denied petitioner's application without a hearing, resulting in this appeal.

In support of his application, petitioner contends that his waiver of indictment was jurisdictionally defective because he was not held over for grand jury action in accordance with CPL 195.10 and did not sign a written instrument waiving indictment under CPL 195.20. Inasmuch as this claim, albeit jurisdictional in nature, could have been raised on direct appeal or in a CPL article 440 motion, habeas corpus relief is unavailable ( see People ex rel. McDermott v Artus, 38 AD3d 957, lv denied 8 NY3d 814; see also People ex rel. Spaulding v Napoli, 50 AD3d 1330, 1331; People ex rel. Alvarez v West, 22 AD3d 996, 996, lv denied 6 NY3d 704). Under the circumstances presented, we find no reason to depart from traditional orderly procedure ( see People ex rel. Spaulding v Napoli, 50 AD3d at 1331; People ex rel. Alvarez v West, 22 AD3d at 996).

Ordered that the judgment is affirmed, without costs.


Summaries of

People v. Connolly

Appellate Division of the Supreme Court of New York, Third Department
Nov 6, 2008
56 A.D.3d 847 (N.Y. App. Div. 2008)

affirming New York Supreme Court, Clinton County's denial of petition for a writ of habeas corpus brought pursuant to C.P.L.R. Article 70

Summary of this case from Moore v. Superintendent of Southport Corr. Facility

affirming New York Supreme Court, Clinton County's denial of petition for writ of habeas corpus brought pursuant to C.P.L.R. Article 70

Summary of this case from Moore v. New York State Appellate Div. Fourth Dept
Case details for

People v. Connolly

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. GARY H. MOORE, Appellant, v…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 6, 2008

Citations

56 A.D.3d 847 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 8378
867 N.Y.S.2d 735

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