People ex rel. Brown v. Murray

—Judgment unanimously affirmed without costs. *988Memorandum: Petitioner filed a petition for a writ of habeas corpus with this Court, contending that a DNA laboratory report was improperly submitted to the Grand Jury, rendering his underlying criminal indictment defective and depriving County Court of jurisdiction over him. Petitioner also applied for poor person relief and assignment of counsel. We transferred the petition and application to Supreme Court, Livingston County, where petitioner is incarcerated. That court properly denied the petition and application without a hearing. A petition for a writ of habeas corpus should be denied without a hearing where, as here, “ ‘it appears from the petition or the documents annexed thereto that the person is not illegally detained’ ” (People ex rel. Mancuso v Herbert, 256 AD2d 1158, 1159, lv denied 93 NY2d 809, quoting CPLR 7003 [a]). Petitioner’s contention that the DNA laboratory report should not have been submitted to the Grand Jury could have been raised on direct appeal or by a motion pursuant to CPL article 440, and thus habeas corpus relief is not available (see, People ex rel. Batista v Walker, 198 AD2d 865, lv denied 83 NY2d 752; see also, People ex rel. Mena v Brennan, 223 AD2d 513). Nor did the court err in denying petitioner’s application for assignment of counsel; the petition “lacked any justiciable basis upon which a writ of habeas corpus could be sustained” (People ex rel. Washington v La Vallee, 34 AD2d 603, lv denied 27 NY2d 481; see generally, People ex rel. Williams v La Vallee, 19 NY2d 238, 240-241). (Appeal from Judgment of Supreme Court, Livingston County, Cicoria, J. — Habeas Corpus.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Burns, JJ.