Opinion
530089
04-23-2020
The PEOPLE of the State of New York ex rel. Francis Smythe, Appellant, v. Christopher MILLER, as Superintendent of Great Meadow Correctional Facility, Respondent.
Francis Smythe, Comstock, appellant pro se. Letitia James, Attorney General, Albany (Patrick A. Woods of counsel), for respondent.
Francis Smythe, Comstock, appellant pro se.
Letitia James, Attorney General, Albany (Patrick A. Woods of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Mulvey and Devine, JJ.
MEMORANDUM AND ORDER
In 1990, petitioner was convicted of murder in the second degree, among other crimes, and is serving a lengthy prison term ( People v. Smythe , 210 A.D.2d 887, 620 N.Y.S.2d 647 [1994], lv denied 85 N.Y.2d 943, 627 N.Y.S.2d 1005, 651 N.E.2d 930 [1995] ). Following the Fourth Department's denial of petitioner's application for a writ of error coram nobis ( People v. Smythe , 166 A.D.3d 1543, 85 N.Y.S.3d 808 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 608, 121 N.E.3d 236 [2019] ), petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus, contending that the indictment underlying his murder conviction was jurisdictionally defective because it was not signed by the grand jury foreperson and was not stamped "true bill." Supreme Court dismissed petitioner's application without a hearing, prompting this appeal.
Even assuming, without deciding, that petitioner's challenges to the indictment rise to the level of jurisdictional defects, the case law makes clear that "habeas 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. Thompson v. Keyser , 173 A.D.3d 1586, 1586, 101 N.Y.S.3d 670 [2019] [internal quotation marks, brackets and citations omitted], lv denied 34 N.Y.3d 904, 2019 WL 6208794 [2019] ; accord People ex rel. Moise v. Coveny , 175 A.D.3d 1693, 1693–1694, 106 N.Y.S.3d 643 [2019], lv denied 34 N.Y.3d 912, 123 N.Y.S.3d 80, 145 N.E.3d 963, 2020 N.Y. Slip Op. 64992 [Mar. 24, 2020] ; People ex rel. Hill v. Miller , 175 A.D.3d 790, 790, 103 N.Y.S.3d 863 [2019], lv denied 34 N.Y.3d 907, 2019 WL 6909599 [2019] ). We agree with Supreme Court that petitioner could have raised these arguments upon his direct appeal or via a CPL article 440 motion and, further, discern no reason to depart from traditional orderly procedures. Accordingly, Supreme Court properly denied petitioner's application without a hearing (see People ex rel. Nailor v. Kirkpatrick , 156 A.D.3d 1100, 1100, 65 N.Y.S.3d 469 [2017] ; People ex rel. Alvarez v. West , 22 A.D.3d 996, 996, 802 N.Y.S.2d 391 [2005], lv denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791 [2006] ).
Garry, P.J., Lynch, Clark, Mulvey and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.