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The People of the State of v. Raymond Cunningham

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


June 30, 2011

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JEFFREY THIGPEN, APPELLANT,
v.
RAYMOND CUNNINGHAM, AS SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY, RESPONDENT.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered June 29, 2010 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

MEMORANDUM AND ORDER

Calendar Date: May 11, 2011

Before: Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ.

Petitioner, who is serving a lengthy prison sentence following his 1996 conviction of various crimes including robbery in the first degree (People v Thigpen, 256 AD2d 601 [1998], lv denied 93 NY2d 930 [1999]), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus alleging that his waiver of immunity before the grand jury was ineffective. However, habeas corpus relief is unavailable because petitioner's claim could have been and was, in fact, raised in his direct appeal and/or various unsuccessful CPL article 440 motions and no extraordinary circumstances exist that would warrant a departure from traditional orderly procedure (see People ex rel. Pittman v Yelich, 79 AD3d 1506, 1506-1507 [2010]; People ex rel. Franza v Lape, 61 AD3d 1200, 1200 [2009]). Moreover, were we to reach the merits of petitioner's argument, we would find it unavailing, inasmuch as a waiver that is signed outside the presence of the grand jury, but is later sworn to before the grand jury, satisfies the requirements of CPL 190.45 (2) (see People v Edwards, 37 AD3d 289, 289 [2007], lv denied 9 NY3d 843 [2007]).

Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110630

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