Opinion
May 16, 1991
Appeal from the Supreme Court, Ulster County (Bradley, J.).
Petitioner, an inmate at Sullivan Correctional Facility in Sullivan County, challenges his imprisonment based upon alleged defects in the indictment which led to his conviction. He claims that the indictment must be dismissed because it alleged that he forcibly stole property from Canandaigua National Bank and Trust Company without naming the actual persons robbed, which he claims is required by the Penal Law. Contrary to petitioner's position, it is clear that the bank was a "person" and victim within the meaning of the statute (see, Penal Law § 10.00; People v Katz, 135 Misc.2d 857, lv denied 70 N.Y.2d 713, appeal dismissed 484 U.S. 960).
Additionally, the facts alleged in the petition could have been asserted in a CPL article 440 motion or on direct appeal and habeas corpus is thus not an appropriate remedy (see, People ex rel. Rosado v Miles, 138 A.D.2d 808).
Finally, as to petitioner's contention that he was not afforded an evidentiary hearing, none is required where there are no triable issues of fact and a summary determination can be made upon the pleadings. Petitioner's presence, therefore, was not required before Supreme Court (see, People ex rel. Robertson v New York State Div. of Parole, 67 N.Y.2d 197, 203).
Judgment affirmed, without costs. Casey, J.P., Mikoll, Yesawich, Jr., Mercure and Crew III, JJ., concur.