Opinion
November 2, 2000.
Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered February 10, 2000 in Ulster County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
James Spencer, Dannemora, appellant in person.
Edward J. Miller, District Attorney, Mineola, for respondent.
Before: Mercure, J.P., Spain, Carpinello, Mugglin and Rose, JJ.
MEMORANDUM AND ORDER
Petitioner, serving a prison term of 12 years for his conviction of the crime of burglary in the second degree, commenced this proceeding for a writ of habeas corpus contending that he was denied effective assistance of counsel at the Grand Jury proceedings during which he waived his immunity and testified. Supreme Court dismissed the petition and we affirm. Inasmuch as petitioner has raised this issue in his pending direct appeal or could have raised it in a CPL article 440 motion, habeas corpus is an inappropriate remedy (see, People ex rel. Hall v. Bennett, 267 A.D.2d 644, lv denied 94 N.Y.2d 762; People ex rel. Charles v. De Angelo, 263 A.D.2d 796, 797; People ex rel. Gasper v. Sullivan, 164 A.D.2d 926, lv denied 76 N.Y.2d 712). Furthermore, we find no circumstances warranting a departure from traditional orderly procedure notwithstanding petitioner's contention to the contrary (see, People ex rel. Hall v. Bennett, supra).
ORDERED that the judgment is affirmed, without costs.