January 24, 2013
THE PEOPLE OF THE STATE OF NEW YORK ex rel. HOWARD WALLACE, Appellant,
THOMAS LaVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.
Calendar Date: December 17, 2012
Howard Wallace, Comstock, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Before: Mercure, J.P., Lahtinen, Spain, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Lawliss, J.), entered January 6, 2012 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Following a new trial ordered after petitioner's prior conviction was reversed (People v Wallace, 250 A.D.2d 398, 399 ), petitioner was convicted of three counts of robbery in the first degree. He was thereafter sentenced, as a persistent violent felony offender, to an aggregate prison term of 60 years to life. The judgment of conviction was affirmed on appeal (People v Wallace, 298 A.D.2d 130 ) and his motion pursuant to CPL 440.10 was denied. Petitioner thereafter brought this application for a writ of habeas corpus contending that the indictment underlying his convictions was invalid. Supreme Court dismissed the application without a hearing and petitioner now appeals.
We affirm. As petitioner could have challenged the validity of the indictment on direct appeal or in the context of his CPL 440.10 motion, habeas corpus relief is unavailable (see People ex rel. Hall v Bradt, 85 A.D.3d 1422, 1422-1423 ; People ex rel. Reyes v State of New York Dept. of Correctional Servs., 288 A.D.2d 523, 523 ). Furthermore, we find no extraordinary circumstances in the record warranting a departure from traditional orderly procedure (see People ex rel. McNeil v Bradt, 87 A.D.3d 1239, 1239 , lv denied 18 N.Y.3d 803 ; People ex rel. Jackson v Rock, 67 A.D.3d 1080, 1080 ). Consequently, Supreme Court properly dismissed the application.
Mercure, J.P., Lahtinen, Spain, McCarthy and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed, without costs.