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People ex rel Franza v. Lape

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DOMINIC M. FRANZA, APPELLANT,
v.
WILLIAM R. LAPE, AS SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: March 2, 2009

Before: Mercure, J.P., Peters, Lahtinen, Kane and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lalor, J.), entered September 18, 2008 in Greene County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, who is serving a lengthy prison term following his 1992 conviction of three counts of attempted murder in the second degree and one count of criminal possession of a weapon in the first degree (People v Franza, 239 AD2d 201 [1997], lv denied 90 NY2d 904 [1997]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging that the trial court lacked jurisdiction because the underlying indictment was procured by fraud. Habeas corpus relief does not lie where, as here, the arguments advanced could have been raised either upon a direct appeal from the judgment of conviction or in the context of a collateral motion (see People ex rel. Smith v Burge, 11 AD3d 907, 907-908 [2004], lv denied 4 NY3d 701 [2004]; People ex rel. Charles v DeAngelo, 263 AD2d 796, 797 [1999]). Notably, the record reflects that similar issues were the subject of a previous and unsuccessful CPL article 440 motion, as well as a federal application for habeas corpus relief. Under these circumstances, and in light of the fact that the record discloses no extraordinary circumstances that would warrant a departure from traditional orderly procedure, Supreme Court's judgment is affirmed (see People ex rel. Walsh v Sabourin, 305 AD2d 759, 759 [2003]; People ex rel. Brown v People, 295 AD2d 834, 835 [2002], lv denied 98 NY2d 613 [2002], cert denied 537 US 1175 [2003]).

Mercure, J.P., Peters, Lahtinen, Kane and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090416

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