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The People of the State of New York Ex Rel. v. Harold Graham

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 13, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. VARSEY JOHNSON,
PETITIONER-APPELLANT,
v.
HAROLD GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY,
RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered December 5, 2008 in a habeas corpus proceeding.

1434

PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, CARNI, AND PINE, JJ.

MEMORANDUM AND ORDER

The judgment dismissed the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:

Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that the indictment underlying his conviction is jurisdictionally defective because, although he is named as the sole defendant in the indictment, his name is not specifically mentioned in the sole count thereof. Supreme Court properly dismissed the petition.

"Petitioner could have raised his challenge to the . . . indictment on his direct appeal from the judgment of conviction or by way of a motion pursuant to CPL 440.10, and thus habeas corpus relief is not available" (People ex rel. Lanfair v Corcoran, 60 AD3d 1351, lv denied 12 NY3d 714; see People ex rel. Lewis v Graham, 57 AD3d 1508, lv denied 12 NY3d 705; People ex rel. Curry v Girdich, 290 AD2d 912, lv denied 98 NY2d 602). In any event, petitioner's contention is without merit (see Lewis, 57 AD3d 1508).

Patricia L. Morgan Clerk of the Court

20091113

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