In this habeas corpus proceeding he contends that his assigned attorney did not make a motion that he be allowed to testify before the Grand Jury which indicted him, despite relator's expressed desire to so testify; that his attorney did not advise him of his "right" to a pre-indictment hearing; and that the court improperly declined his request for assignment of new counsel. At the time of the presentation of the petition for the writ, relator's judgment of conviction had been affirmed in this court (People v Jenkins, 49 A.D.2d 683), and a further appeal was pending in the Court of Appeals. It also appears that there was pending before the trial court a motion brought pursuant to CPL article 440 to vacate the judgment of conviction upon the same grounds asserted in this proceeding. The court properly dismissed the writ, without a hearing, because of the pendency of the appeal and the motion.