Opinion
No. KAH 08-00187.
December 31, 2008.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered July 20, 2007 in a habeas corpus proceeding. The judgment denied the petition.
CHARLES A. MARANGOLA, MORAVIA, FOR PETITIONER-Appellant.
TEDDY LEWIS, PETITIONER-APPELLANT PRO SE.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-Respondent.
Before: Martoche, J.P., Smith, Centra, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied the petition seeking a writ of habeas corpus. The contention of petitioner that he is entitled to immediate release because the indictment was jurisdictionally defective could have been raised on direct appeal or by way of a CPL article 440 motion, and thus habeas corpus relief does not lie ( see People ex rel. Gloss v Murray, 35 AD3d 1186, lv denied 8 NY3d 807; People ex rel. Alvarez v West, 22 AD3d 996, lv denied 6 NY3d 704; People ex rel. Reed v Travis, 12 AD3d 1102, lv denied 4 NY3d 704). In any event, petitioner's contention is without merit. "An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime" ( People v D'Angelo, 98 NY2d 733, 734). Although each count of the indictment failed to state petitioner's name and instead stated that "THE DEFENDANT, ACTING IN CONCERT WITH ANOTHER PERSON" committed the specified offenses, petitioner was the only person listed as the defendant in the caption of the indictment. Thus, the reference to "DEFENDANT" in the body of the indictment was sufficient to charge petitioner with the commission of the crimes.