Opinion
August 22, 1991
Appeal from the Supreme Court, Clinton County (Lewis, J.).
Petitioner commenced this habeas corpus proceeding seeking his release from prison on the ground that the indictment underlying his murder convictions was defective. Habeas corpus is not a proper remedy where the allegations in the petition could have been raised either in a CPL article 440 motion or on direct appeal (see, People ex rel. Woodard v Berry, 143 A.D.2d 457, 458, lv denied 73 N.Y.2d 705; People ex rel. Rosado v Miles, 138 A.D.2d 808). Petitioner not only admits in his brief that the error he now raises was not raised on his direct appeal, but he fails to give any reason why he did not do so (see, People ex rel. Barnes v Smith, 70 A.D.2d 764). In addition, the allegations in his petition do not warrant a departure from traditional orderly procedure (see, People ex rel. Grady v LeFevre, 152 A.D.2d 850, lv denied 75 N.Y.2d 702). In any event, inasmuch as petitioner is only challenging his murder convictions and not any other conviction arising under the same indictment for which he is also imprisoned, he is not entitled to immediate release; therefore, habeas corpus is not an appropriate remedy (see, People ex rel. Stewart v People, 143 A.D.2d 1068, 1069).
Mahoney, P.J., Casey, Mikoll, Levine and Crew III, JJ., concur. Ordered that the judgment is affirmed, without costs.