Although petitioner argues that his continued imprisonment is illegal because the jury before which he was tried was unlawfully constituted, such an argument could have been raised either by way of direct appeal or by a motion pursuant to CPL article 440 (see, People ex rel. Rosado v Miles, 138 A.D.2d 808). The facts which petitioner now asserts were either known or ascertainable at the time of his conviction and do not provide a basis for departure from traditional procedures (see, People ex rel. Keitt v McMann, 18 N.Y.2d 257). Accordingly, Supreme Court properly denied petitioner's application for a writ of habeas corpus (see, People ex rel. Dudley v Kelly, 128 A.D.2d 981).

Judgment affirmed, without costs. Mahoney, P.J., Casey, Weiss, Crew III, and Harvey, JJ., concur.