Opinion
2012-11-29
The PEOPLE of the State of New York ex rel. Dominic M. FRANZA, Appellant, v. Michael SHEAHAN, as Acting Superintendent of Southport Correctional Facility, Respondent.
Dominic M. Franza, Sonyea, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Dominic M. Franza, Sonyea, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Appeals from a judgment and an amended judgment of the Supreme Court (Hayden, J.), entered February 10, 2012 and March 2, 2012 in Chemung County, which *505denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is serving a lengthy term of imprisonment and has unsuccessfully pursued habeas corpus relief in the past upon the ground that the indictment against him was filed as waived due to the presence of the word “Waived” on the indictment's pre-printed form backer ( People ex rel. Franza v. Walsh, 76 A.D.3d 1160, 1160, 907 N.Y.S.2d 725 [2010],lv. denied15 N.Y.3d 716, 917 N.Y.S.2d 106, 942 N.E.2d 317 [2010],cert. denied ––– U.S. ––––, 131 S.Ct. 3038, 180 L.Ed.2d 858 [2011] ). Petitioner now asserts that the presence of a handwritten “W” on the similar backer of a superceded indictment further demonstrated an intent to withdraw the charges against him. To the extent that his present argument was not “presented and determined” upon his prior application for habeas corpus relief ( seeCPLR 7003[b] ), that relief is nevertheless inappropriate here because his argument could have been raised upon direct appeal or in an appropriate postjudgment motion ( see People ex rel. Riley v. Bradt, 91 A.D.3d 1238, 936 N.Y.S.2d 921 [2012];People ex rel. Purdie v. LaValley, 86 A.D.3d 883, 884, 928 N.Y.S.2d 381 [2011] ). Inasmuch as no reason exists to depart from traditional orderly procedure, Supreme Court properly dismissed the petition ( see id.).
ORDERED that the judgment and amended judgment are affirmed, without costs.