Opinion
527675
06-27-2019
The PEOPLE of the State of New York ex rel. Derrick Thompson, Appellant, v. William KEYSER, as Superintendent of Sullivan Correctional Facility, Respondent.
Derrick Thompson, Napanoch, appellant pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Derrick Thompson, Napanoch, appellant pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Lynch, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER Appeal from an order of the Supreme Court (Schick, J.), entered September 28, 2018 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner, who currently is serving a lengthy period of incarceration upon his conviction of burglary in the second degree and grand larceny in the third degree ( People v. Thompson, 99 A.D.3d 819, 951 N.Y.S.2d 754 [2012], lv denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012] ), commenced this CPLR article 70 proceeding seeking a writ of habeas corpus contending that his confinement was illegal because the underlying indictment was not signed by the grand jury foreperson. Supreme Court denied the application. Petitioner appeals.
Even assuming, without deciding, that the apparent absence of the grand jury foreperson's signature upon the underlying indictment might be found to constitute a jurisdictional defect under the particular facts of this case (compare People v. Quintana, 159 A.D.3d 1122, 1123, 71 N.Y.S.3d 752 [2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; People v. Pigford, 148 A.D.3d 1299, 1302, 48 N.Y.S.3d 837 [2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; People v. Burch, 97 A.D.3d 987, 988, 948 N.Y.S.2d 742 [2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ), it is well settled that "[h]abeas corpus is not the appropriate remedy for raising claims that could have been raised on direct appeal or in the context of a CPL article 440 motion, even if they are jurisdictional in nature" ( People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [2017] [internal quotation marks and citations omitted]; see People ex rel. Golston v. Kirkpatrick, 153 A.D.3d 1498, 1498–1499, 59 N.Y.S.3d 912 [2017], appeal dismissed 30 N.Y.3d 1031, 69 N.Y.S.3d 202, 91 N.E.3d 1181 [2017], lv denied 31 N.Y.3d 903, 77 N.Y.S.3d 654, 102 N.E.3d 430 [2018] ; People ex rel. Fulton v. LaValley, 100 A.D.3d 1202, 1203, 953 N.Y.S.2d 911 [2012] ). As we discern no basis upon which to depart from traditional orderly procedure (see People ex rel. Nailor v. Kirkpatrick, 156 A.D.3d at 1100, 65 N.Y.S.3d 469 ; People ex rel. Richards v. Yelich, 87 A.D.3d 764, 765, 927 N.Y.S.2d 801 [2011], appeal dismissed and lv. denied 17 N.Y.3d 922, 934 N.Y.S.2d 371, 958 N.E.2d 550 [2011] ; People ex rel. Cisson v. Artus, 78 A.D.3d 1392, 1393, 910 N.Y.S.2d 700 [2010] ), Supreme Court properly denied petitioner's application.
Garry, P.J., Lynch, Mulvey, Aarons and Pritzker, JJ., concur.
ORDERED that the order is affirmed, without costs.