Opinion
94898.
Decided and Entered: June 10, 2004.
Appeal from a judgment of the Supreme Court (O'Brien III, J.), entered October 29, 2003 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.
Johnnie Bunting, Pine City, appellant pro se.
Before: Mercure, J.P., Peters, Mugglin, Rose and Kane, JJ.
MEMORANDUM AND ORDER
Petitioner is currently incarcerated and serving a term of 20 years to life in prison upon his conviction of murder in the second degree. He filed a petition for a writ of habeas corpus alleging, among other things, that the indictment was jurisdictionally defective. Supreme Court denied petitioner's application without a hearing, resulting in this appeal.
We affirm. Habeas corpus relief is inappropriate where the issues the petitioner seeks to raise could have been advanced on direct appeal or in the context of a CPL article 440 motion (see People ex rel. Burt v. Campbell, 2 A.D.3d 1067, 1067; People ex rel. Brown v. People of State of N.Y., 295 A.D.2d 834, 835, lv denied 98 N.Y.2d 613, cert denied 537 U.S. 1175; People ex rel. Merriweather v. Miller, 243 A.D.2d 872, 873, lv denied 91 N.Y.2d 804). Petitioner's appeal from the underlying judgment of conviction was affirmed by the First Department (People v. Bunting, 178 A.D.2d 288, lv denied 79 N.Y.2d 944) and he could have raised the issues contained in his petition on the direct appeal or in a CPL article 440 motion to the trial court (see People ex rel. Frazier v. Coombe, 87 A.D.2d 904, 904). Accordingly, denial of the application was proper.
Mercure, J.P., Peters, Mugglin, Rose and Kane, JJ., concur.
ORDERED that the judgment is affirmed, without costs.