Ultimately the Court of Appeals denied the writ. People ex rel. Guido v. Calkins, 9 N.Y.2d 77, 211 N.Y.S.2d 166, 172 N.E.2d 549 (1961), reversing 10 A.D.2d 510, 200 N.Y.S.2d 907 (3rd Dept. 1960), reversing 13 Misc.2d 791, 178 N.Y.S.2d 385 (1958). In the present civil action for damages, Guido contends that defendants violated § 605 by intercepting and disclosing at the state trial, without permission, the contents of telephone conversations to which he was a party.
cation for leave to appeal to the Court of Appeals was denied ( 49 N.Y.2d 896). By petition verified March 11, 1981, petitioner commenced this proceeding seeking a writ of habeas corpus upon the grounds of insufficiency of the evidence before the Grand Jury, prosecutorial misconduct, and denial of the right to confrontation. Special Term properly dismissed the petition since this court had previously rejected petitioner's challenge to the sufficiency of the trial evidence, thereby foreclosing the present challenge to the sufficiency of the evidence before the Grand Jury (CPL 210.30, subd 6; People ex rel. Palmer v LeFevre, 72 A.D.2d 618). The writ may not be utilized to review errors already passed upon in an earlier appeal ( People ex rel. Keitt v McMann, 18 N.Y.2d 257, 262). Contrary to petitioner's argument in his brief, this is not an instance where the indictment was obtained solely on the basis of hearsay testimony which would deprive the court of a jurisdictional predicate (see People ex rel. Guido v Calkins, 10 A.D.2d 510, revd on other grounds 9 N.Y.2d 77). Inasmuch as the remaining issues could have been reviewed directly by way of appeal or pursuant to CPL article 440 in the court of conviction, habeas corpus is inappropriate ( People ex rel. Hall v LeFevre, 92 A.D.2d 956; People ex rel. World v Jones, 88 A.D.2d 1096, mot for lv to app den 57 N.Y.2d 608). Nor may habeas corpus be utilized to collaterally attack the judgment on constitutional grounds ( People ex rel. Russell v LeFevre, 59 A.D.2d 588, mot for lv to app den 42 N.Y.2d 811; People ex rel. Malinowski v Casscles, 53 A.D.2d 954, app dsmd 40 N.Y.2d 989). The facts of this case do not compel a departure from traditional orderly procedure (see People ex rel. Keitt v McMann, 18 N.Y.2d 257, supra). Petitioner's contentions of prosecutorial misconduct are without factual basis in the record (cf.
Order unanimously reversed and proceeding remitted to the Onondaga County Court for a hearing. Memorandum: Petitioner alleges that he stands convicted, on his plea of guilty, of the crime of sodomy in the second degree, whereas he was indicted for that crime in the first degree only. Sodomy, second degree, is not necessarily an included crime or an inferior degree of the crime of sodomy, first degree ( People v. Cipolla, 7 A.D.2d 698, affd. as to this ground and reversed in part on other grounds 6 N.Y.2d 922). He may well have been convicted of a crime of which he had not been indicted contrary to the provisions of section 6 of article I of the Constitution of the State of New York. The appropriate remedy in this situation, if there is any, is unclear under the authorities ( Matter of Lyons v. Ward, 272 App. Div. 120, affd. 297 N.Y. 617, affd. sub nom. Paterno v. Lyons, 334 U.S. 314; People ex rel. Wachowicz v. Martin, 293 N.Y. 361; People v. Englese, 7 N.Y.2d 83, 87; People ex rel. Guido v. Calkins, 10 A.D.2d 510; People ex rel. Tracher v. Martin, 268 App. Div. 955; People ex rel. Hornbeck v. Jackson, 6 A.D.2d 924; People ex rel. Tesseyman v. Murphy, 8 A.D.2d 682; Tesseyman v. State of New York, 21 Misc.2d 534; People ex rel. Cooper v. Martin, 5 A.D.2d 736; People v. Paterno, 187 Misc. 56). No counsel was assigned in the proceeding by the trial court or by this court upon appeal. A hearing should be held, counsel assigned, if requested, and the facts and the law fully explored at the trial level.
These are separate legal problems which have nothing to do with the acceptance of lesser or included pleas. For even a plea to the indictment itself could possibly be collaterally attacked via coram nobis ( People ex rel. Gudio v. Calkins, 10 A.D.2d 510; People ex rel. Cooper v. Martin, 5 A.D.2d 736; People v. Englese, 7 N.Y.2d 83) on the theory that the defective indictment is no indictment at all.
In People v. Cavanaugh ( 157 App. Div. 224, 225) an information was held to be sufficient which charged that the defendants did, "engage as dealers, gamekeepers and players in a certain gambling game". In People ex rel. Guido v. Calkins ( 13 Misc.2d 791, revd. 10 A.D.2d 510, revd. 9 N.Y.2d 77) an information was held to be sufficient which charged that the defendant did, "aid and abet in the operation of a gambling establishment". However, both of these cases are distinguishable since a gamekeeper and an operator of a gambling establishment are engaged in professional gambling and are, therefore, common gamblers.
As there is another ground which requires dismissal of the writ I do not reach this issue, as to which see People v. Schildhaus ( 8 N.Y.2d 33, 36). The requirement that the prosecution for a misdemeanor be based upon sworn information is not waived by a plea of guilty ( People v. Scott, 3 N.Y.2d 148) and the writ of habeas corpus is a remedy after a plea of guilty ( People ex rel. Guido v. Calkins, 10 A.D.2d 510) unless a Magistrate or Police Justice acts upon an information which states facts sufficient to charge a crime. But a plea of guilty waives the objection that the information is based on information and belief without disclosing the source thereof.