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The People of the State of New York Ex Rel. v. New York State Department of Correctional Services et al

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


July 28, 2011

THE PEOPLE OF THE STATE OF NEW YORK EX REL.
SANTO GONZALEZ, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 6, 2010 in Franklin County, which dismissed 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: June 8, 2011

Before: Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ.

Petitioner is serving a lengthy term of imprisonment as a result of his conviction of attempted murder in the first degree, attempted assault in the first degree, burglary in the second degree and two counts of criminal possession of a weapon in the second degree. He has unsuccessfully challenged those convictions upon direct appeal and in collateral proceedings, including several motions made pursuant to CPL article 440. Petitioner subsequently brought this habeas corpus proceeding, arguing that the indictment failed to allege every material element of the crimes charged and was jurisdictionally defective. Supreme Court, sua sponte, dismissed the petition. Petitioner now appeals.

We affirm. Petitioner's arguments either could have been or were raised upon direct appeal or in a CPL article 440 motion and, as no extraordinary circumstances warranting a departure from traditional orderly procedure exist here, habeas corpus relief is unavailable to him (see People ex rel. Chapman v LaClair, 64 AD3d 1026, 1026-1027 [2009], lv denied 13 NY3d 712 [2009]; People ex rel. Lewis v Graham, 57 AD3d 1508, 1508-1509 [2008], lv denied 12 NY3d 705 [2009]).

Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110728

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