State of New York Supreme Court, Appellate Division Third Judicial Department
November 29, 2012
THE PEOPLE OF THE STATE OF NEW YORK EX REL. DOMINIC M. FRANZA, APPELLANT,
MICHAEL SHEAHAN, AS ACTING SUPERINTENDENT OF SOUTHPORT CORRECTIONAL FACILITY, RESPONDENT.
MEMORANDUM AND ORDER
Calendar Date: October 29, 2012
Before: Rose, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ.
Appeals from a judgment and an amended judgment of the Supreme Court (Hayden, J.), entered February 10, 2012 and March 2, 2012 in Chemung 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 serving a lengthy term of imprisonment and has unsuccessfully pursued habeas corpus relief in the past upon the ground that the indictment against him was filed as waived due to the presence of the word "Waived" on the indictment's pre-printed form backer (People ex rel. Franza v Walsh, 76 AD3d 1160, 1160 , lv denied 15 NY3d 716 , cert denied US , 131 S Ct 3038 ). Petitioner now asserts that the presence of a handwritten "W" on the similar backer of a superceded indictment further demonstrated an intent to withdraw the charges against him. To the extent that his present argument was not "presented and determined" upon his prior application for habeas corpus relief (see CPLR 7003 [b]), that relief is nevertheless inappropriate here because his argument could have been raised upon direct appeal or in an appropriate postjudgment motion (see People ex rel. Riley v Bradt, 91 AD3d 1238 ; People ex rel. Purdie v LaValley, 86 AD3d 883, 884 ). Inasmuch as no reason exists to depart from traditional orderly procedure, Supreme Court properly dismissed the petition (see id.).
Rose, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur.
ORDERED that the judgment and amended judgment are affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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