Opinion
February 3, 1992
Appeal from the Supreme Court, Dutchess County (Juidice, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
The petitioner has failed to set forth any "factual or legal basis * * * which would render the indictment underlying [his] conviction jurisdictionally defective" (People ex rel. Brady v Scully, 111 A.D.2d 419, 420). Indeed, the claim raised by the petitioner could have been raised on direct appeal, or in a motion pursuant to CPL article 440, and, at best, would have only mandated a new trial, and not petitioner's immediate release from custody (see, People ex rel. Brady v. Scully, supra; People v Jordan, 20 A.D.2d 583). Accordingly, the instant habeas corpus proceeding was properly dismissed (see, People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 N.Y.2d 648). Mangano, P.J., Sullivan, Balletta and Ritter, JJ., concur.