State of New York Supreme Court, Appellate Division Third Judicial Department
July 16, 2009
THE PEOPLE OF THE STATE OF NEW YORK EX REL. DWAYNE CHAPMAN, APPELLANT,
DARWIN LACLAIR, AS SUPERINTENDENT OF FRANKLIN CORRECTIONAL FACILITY, RESPONDENT.
MEMORANDUM AND ORDER
Calendar Date: June 10, 2009
Before: Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 5, 2008 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is currently serving a lengthy term of imprisonment as a result of his conviction of the crimes of attempted murder in the second degree, two counts of robbery in the first degree and criminal possession of a weapon in the second degree. His conviction was affirmed on appeal (People v Chapman, 220 AD2d 210 , lv denied 87 NY2d 903 ). Petitioner subsequently brought this proceeding for a writ of habeas corpus claiming that the indictment was jurisdictionally defective. Supreme Court denied the application without a hearing and this appeal ensued.
We affirm. Habeas corpus is not the appropriate remedy for raising claims that could have been asserted on direct appeal or in the context of a CPL article 440 motion, even if they are jurisdictional in nature (see People ex rel. Fulton v Lape, 61 AD3d 1227 ; People ex rel. Forsythe v Poole, 56 AD3d 1239, 1239 , lv denied 12 NY3d 701 ). On the appeal of his conviction, defendant could have challenged the validity of the indictment and apparently did so in an unsuccessful CPL article 440 motion. In light of this, Supreme Court properly denied petitioner's application. Under the circumstances presented, we find no reason to depart from traditional orderly procedure (see People ex rel. Moore v Connolly, 56 AD3d 847, 848 , lv denied 12 NY3d 701 ).
Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
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