Opinion
October 10, 1996.
Appeal from a judgment of the Supreme Court (Berke, J.), entered July 27, 1995 in Washington County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Before: Mikoll, J.P., Mercure, Crew III, White and Casey, JJ.
Petitioner is currently incarcerated at Great Meadow Correctional Facility in Washington County after being convicted of the crimes of murder in the second degree, two counts of robbery in the first degree, attempted robbery in the first degree and attempted escape in the first degree. He commenced this habeas corpus proceeding seeking to challenge certain irregularities which he contends occurred at his underlying criminal trial. In particular, petitioner argues that his constitutional rights were violated when County Court conferred with defense counsel out of his presence regarding the jury's request for a clarification of the charge. Inasmuch as this issue is more appropriately raised in the context of a CPL article 440 motion or on direct appeal and not in a habeas corpus proceeding, we find that County Court properly dismissed the petition ( see, People ex rel. Sims v Senkowski, 226 AD2d 800; People ex rel. Sneed v Lacy, 217 AD2d 731, lv denied 86 NY2d 708).
Ordered that the judgment is affirmed, without costs.