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People ex rel Franza v. Walsh

State of New York Supreme Court, Appellate Division Third Judicial Department


September 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DOMINIC M. FRANZA, APPELLANT,
v.
JAMES J. WALSH, AS SUPERINTENDENT OF SULLIVAN CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered February 17, 2010 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner was convicted in 1992 of three counts of attempted murder in the second degree and one count of criminal possession of a weapon in the first degree, for which he is currently serving a lengthy aggregate prison term. The backer for the indictment against him had two printed words at the top: "Filed" and "Waived." The indictment was handed up and filed, but petitioner nevertheless challenges the indictment by way of this habeas corpus proceeding, arguing that the presence of the word "Waived" on the backer rendered the indictment "filed as waived" and constituted a jurisdictional defect. Supreme Court dismissed the petition and petitioner now appeals.

We affirm. Petitioner's argument could have been raised upon direct appeal or in a CPL article 440 motion, and habeas corpus relief is accordingly inappropriate (see People ex rel. Lewis v Graham, 57 AD3d 1508, 1508-1509 [2008], lv denied 12 NY3d 705 [2009]; People ex rel. Alvarez v West, 22 AD3d 996, 996 [2005], lv denied 6 NY3d 704 [2006]; People ex rel. Wright v Miller, 16 AD3d 746, 746 [2005], lv denied 5 NY3d 703 [2005]). Nor do we perceive any extraordinary circumstances that would warrant a departure from traditional orderly procedure (see People ex rel. Alvarez v West, 22 AD3d at 996).

Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100930

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