Opinion
177 KAH 18–00368
03-15-2019
The PEOPLE of the State of New York EX REL. Theodore PRICE, Petitioner–Appellant, v. Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent–Respondent.
CHARLES A. MARANGOLA, MORAVIA, FOR PETITIONER–APPELLANT. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF COUNSEL), FOR RESPONDENT–RESPONDENT.
CHARLES A. MARANGOLA, MORAVIA, FOR PETITIONER–APPELLANT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner seeks habeas corpus relief based on his contention that the two misdemeanor informations filed against him in Syracuse City Court were facially insufficient and thus jurisdictionally defective. Supreme Court properly dismissed the petition inasmuch as petitioner could have raised his contention on his direct appeal from the judgment of conviction that stemmed from the same incident that gave rise to those misdemeanor informations ( People v. Price, 129 A.D.3d 1484, 10 N.Y.S.3d 375 [4th Dept. 2015], lv denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ), or in a motion pursuant to CPL article 440 (see People ex rel. Martinez v. Graham, 98 A.D.3d 1312, 1312, 951 N.Y.S.2d 423 [4th Dept. 2012], lv denied 20 N.Y.3d 853, 957 N.Y.S.2d 689, 981 N.E.2d 286 [2012] ). In any event, we note that petitioner's contention is without merit inasmuch as the misdemeanor informations were superseded by a valid, unchallenged indictment on which defendant was prosecuted and found guilty (see People v. Hart, 25 A.D.3d 815, 816, 807 N.Y.S.2d 681 [3d Dept. 2006], lv denied 6 N.Y.3d 834, 814 N.Y.S.2d 82, 847 N.E.2d 379 [2006] ; see also People ex rel. Van Steenburg v. Wasser, 69 A.D.3d 1135, 1136, 893 N.Y.S.2d 379 [3d Dept. 2010], lv denied in part and dismissed in part 14 N.Y.3d 883, 903 N.Y.S.2d 338, 929 N.E.2d 401 [2010] ).