People ex rel. Smith v. Burge

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), dated November 26, 2002 in a proceeding pursuant to CPLR article 70. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner is serving a sentence of 22Va years to life imposed upon his 1993 conviction of various drug charges. He commenced this proceeding for a writ of habeas corpus, contending that the grand jury proceeding was defective based upon the People’s presentation of perjured testimony and the prosecutor’s failure to issue proper instructions to the grand jury. Habeas corpus relief is unavailable, however, because those contentions could have been raised on direct appeal or by a motion pursuant to CPL 440.10 (see People ex rel. McCallister v McGinnis, 249 AD2d 637, 638 [1998]; People ex rel. Sneed v Lacy, 217 AD2d 731 [1995], lv denied 86 NY2d 708 [1995]). The further contention of petitioner that he was denied effective assistance of trial and appellate counsel, based upon counsels’ failure to challenge the allegedly defective grand jury proceeding, would not entitle him to habeas corpus relief (see People ex rel. McCoy v Filion, 295 AD2d 956, 957 [2002], lv denied 98 NY2d 612 [2002]). Supreme Court thus properly dismissed the petition sua sponte (see Matter of Almonte v New York State Div. of Parole, 2 AD3d 1239, 1240 [2003], lv dismissed 2 NY3d 758 [2004]). Present—Green, J.P., Kehoe, Martoche and Hayes, JJ.